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Articles 1 - 12 of 12
Full-Text Articles in Jurisdiction
Self-Intervention, Lumen N. Mulligan
Self-Intervention, Lumen N. Mulligan
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You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …
28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan
28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan
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In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …
Evolving Water Law And Management In The U.S.: Montana, Irma S. Russell
Evolving Water Law And Management In The U.S.: Montana, Irma S. Russell
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The availability of water or the lack thereof has influenced the evolution of each state and the laws of each state. The development of water law naturally grew from the realities of water and other resources in different areas of the country and the need for water for industry, agriculture, and other enterprises. The evolution and development of water management in Montana provide a good example of water management in the western United States. From the beginnings of Montana and of the West as a region, water sat at the top of the list of essentials for human occupancy and …
Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan
Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan
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In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in …
Multicultural Issues In Family Law: An Annotated Bibliography, Nancy Levit
Multicultural Issues In Family Law: An Annotated Bibliography, Nancy Levit
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This bibliography covers law review articles published, for the most part, after 2009. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.
You Can't Go Holmes Again, Lumen N. Mulligan
You Can't Go Holmes Again, Lumen N. Mulligan
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Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer …
Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan
Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan
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In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …
Jurisdiction By Cross-Reference, Lumen N. Mulligan
Jurisdiction By Cross-Reference, Lumen N. Mulligan
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State and federal law often cross-reference each other to provide a rule of decision. The difficulties attendant to these cross-referenced schemes are brought to the fore most clearly when a federal court must determine whether such bodies of law create federal question jurisdiction. Indeed, the federal courts have issued scores of seemingly inconsistent opinions on these cross-referential cases. In this article, I offer an ordering principle for these apparently varied, cross-referential, jurisdictional cases. I argue that the federal courts only take federal question jurisdiction over cross-referenced claims when they, from a departmental perspective, maintain declaratory authority over the cross-referenced law. …
Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan
Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan
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In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …
Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr
Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr
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No abstract provided.
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
Faculty Works
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …
Addressing The Needs Of Attorneys For The Damned, Sean O'Brien
Addressing The Needs Of Attorneys For The Damned, Sean O'Brien
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This article is an introduction to the UMKC Law Review symposium issue dedicated to exploring the topic of capital punishment. UMKC Professor of Law Sean O’Brien shares how the growing importance of capital litigation makes this a timely and appropriate subject for consideration and shares how the university and the Law Review's attention to the death penalty debate contributes to more than just academic discussion.