Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (20)
- Constitutional Law (17)
- Civil Procedure (16)
- Indigenous, Indian, and Aboriginal Law (8)
- Legislation (7)
-
- Environmental Law (6)
- Conflict of Laws (5)
- Civil Rights and Discrimination (4)
- Criminal Law (4)
- Torts (4)
- Family Law (3)
- Judges (3)
- Law and Politics (3)
- Administrative Law (2)
- Criminal Procedure (2)
- Dispute Resolution and Arbitration (2)
- Fourteenth Amendment (2)
- Intellectual Property Law (2)
- Jurisprudence (2)
- Labor and Employment Law (2)
- Legal Remedies (2)
- Litigation (2)
- Military, War, and Peace (2)
- Oil, Gas, and Mineral Law (2)
- Other Law (2)
- State and Local Government Law (2)
- Water Law (2)
- Admiralty (1)
- Institution
-
- Washington and Lee University School of Law (15)
- Maurer School of Law: Indiana University (13)
- West Virginia University (12)
- Pepperdine University (7)
- University of Oklahoma College of Law (5)
-
- Villanova University Charles Widger School of Law (5)
- Selected Works (4)
- Cleveland State University (3)
- University of Miami Law School (3)
- Boston University School of Law (2)
- Campbell University School of Law (2)
- Columbia Law School (2)
- Notre Dame Law School (2)
- SelectedWorks (2)
- University of Maryland Francis King Carey School of Law (2)
- University of Michigan Law School (2)
- American University Washington College of Law (1)
- Brigham Young University Law School (1)
- Cornell University Law School (1)
- Northwestern Pritzker School of Law (1)
- Penn State Law (1)
- Schulich School of Law, Dalhousie University (1)
- Seattle University School of Law (1)
- Texas A&M University School of Law (1)
- University of Colorado Law School (1)
- University of Kentucky (1)
- University of Missouri School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of Pittsburgh School of Law (1)
- University of Washington School of Law (1)
- Publication Year
- Publication
-
- Washington and Lee Law Review (15)
- West Virginia Law Review (12)
- Indiana Law Journal (9)
- Faculty Scholarship (6)
- Pepperdine Law Review (6)
-
- American Indian Law Review (5)
- Articles by Maurer Faculty (4)
- Cleveland State Law Review (3)
- Articles (2)
- Campbell Law Review (2)
- Journal Articles (2)
- Maryland Law Review (2)
- University of Miami Law Review (2)
- Villanova Environmental Law Journal (2)
- Villanova Law Review (2)
- Anthony J. Bellia (1)
- Arbitration Law Review (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Cornell Law Faculty Publications (1)
- Faculty Publications (1)
- Jeffrey S. Moorad Sports Law Journal (1)
- Journal of the National Association of Administrative Law Judiciary (1)
- Julian Velasco (1)
- Kentucky Law Journal (1)
- LLM Theses (1)
- Michael C Walsh (1)
- Michael W. Lewis (1)
- Michigan Law Review (1)
- Northwestern University Law Review (1)
- Paul Lund (1)
- Publication Type
- File Type
Articles 1 - 30 of 96
Full-Text Articles in Jurisdiction
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
LLM Theses
This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …
Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick
Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick
Pepperdine Law Review
Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …
Indian Tribes, Civil Rights, And Federal Courts, Robert D. Probasco
Indian Tribes, Civil Rights, And Federal Courts, Robert D. Probasco
Robert Probasco
A citizen’s civil rights include protections against certain actions by three different governments – federal, state, and tribal. If the federal or a state government violates your civil rights, you can seek a remedy in federal court, including injunctive or declaratory judgment and damages. But the Supreme Court decided in Santa Clara Pueblo v. Martinez that that – other than habeas corpus relief – you cannot challenge a civil rights violation by an Indian tribe in federal court. The decision has resulted in a significant amount of controversy and proposals that Congress explicitly grant such jurisdiction. This article reviews the …
Doscher: The Second Circuit Frees Itself From Its Prior Look Through Approach, Fueling A Circuit Split, Peter Nelson
Doscher: The Second Circuit Frees Itself From Its Prior Look Through Approach, Fueling A Circuit Split, Peter Nelson
Arbitration Law Review
No abstract provided.
Domicile Dismantled, Kerry Abrams, Kathryn Barber
Domicile Dismantled, Kerry Abrams, Kathryn Barber
Indiana Law Journal
Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a …
The Hague Convention On The Civil Aspects Of International Child Abduction And The Latent Domestic Relations Exception To Federal Question Jurisdiction, Sam F. Halabi
Faculty Publications
This article explores the discrepancy in the law of federal jurisdiction as it has developed under the Hague Child Abduction Convention. In contrast to return claims where the remedy is discrete, finite, and closely tied to fundamental international obligations under the treaty, orders to enforce access rights are, or would be, amorphous, ongoing, and subject to other administrative structures codified in the convention as well as, in the U.S. system, adding responsibilities for federal judges more generally associated with those undertaken by state judges. Even in the one federal appellate decision that explicitly acknowledged a judicially enforceable right to ensure …
The Same-Sex Marriage Cases And Federal Jurisdiction: On Third-Party Standing And Why The Domestic Relations Exception To Federal Jurisdiction Should Be Overruled, Steven G. Calabresi, Genna L. Sinel
The Same-Sex Marriage Cases And Federal Jurisdiction: On Third-Party Standing And Why The Domestic Relations Exception To Federal Jurisdiction Should Be Overruled, Steven G. Calabresi, Genna L. Sinel
University of Miami Law Review
In this paper, we consider two questions. First, we address whether there was proper standing for the Article III courts to decide United States v. Windsor, 570 U.S. 133 S. Ct. 2675, 2696 (2013) and Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). We conclude that the third-party appellants lacked standing in federal court. Second, we examine whether cases challenging state same-sex marriage bans were and are cases in “law and equity” or instead, barred under the domestic relations exception for the purposes of federal question jurisdiction. We conclude that the domestic relations exception to federal jurisdiction is an …
A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman
A First Look At The Proposed 'Fraudulent Joinder Prevention Act Of 2015', Arthur D. Hellman
Testimony
Almost half a century ago, the American Law Institute observed, “The most marked abuse has been joinder of a party of the same citizenship as plaintiff in order to defeat removal on the basis of diversity jurisdiction. Such tactics have led to much litigation, largely futile, on the question of fraudulent joinder.” Over the last half century, the volume of litigation on this question has only increased. In response, Congress is now actively considering legislation to address the problem of fraudulent joinder.
The bill is H.R. 3624, the “Fraudulent Joinder Prevention Act of 2015” (FJPA). The FJPA seeks to prevent …
Morris V. Allen And The Lost History Of The Anti-Injunction Act Of 1793, James E. Pfander, Nassim Nazemi
Morris V. Allen And The Lost History Of The Anti-Injunction Act Of 1793, James E. Pfander, Nassim Nazemi
Northwestern University Law Review
No abstract provided.
The New Habeas Corpus In Death Penalty Cases, Larry Yackle
The New Habeas Corpus In Death Penalty Cases, Larry Yackle
Faculty Scholarship
This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules …
Enlightening The Forgotten: Removal Of State Cases Involving Service-Members Into Federal Courts, Michael C. Walsh
Enlightening The Forgotten: Removal Of State Cases Involving Service-Members Into Federal Courts, Michael C. Walsh
Michael C Walsh
No abstract provided.
Federal Banks And Federal Jurisdiction In The Progressive Era, Larry Yackle
Federal Banks And Federal Jurisdiction In The Progressive Era, Larry Yackle
Faculty Scholarship
This is a case study of the Supreme Court’s classic decision in Smith v. K.C. Title & Trust Co. A stockholder challenged the constitutionality of the Farm Loan Act of 1916, which authorized federal banks to issue tax-exempt bonds to raise funds for loans to farmers. The case is best known for its holding that a federal court could entertain the suit because it arose “under the Constitution” and for Justice Holmes’ argument, in dissent, that federal jurisdiction was not established because state law created the “cause of action.”
This study is the first to go beyond the jurisdictional issue …
Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco
Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco
Julian Velasco
The extent of Congress's authority to control the jurisdiction of the federal courts has been the subject of unending academic debate. The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction. There has been no shortage, however, of commentators who have taken exception to that view. The heart of the debate lies in whether Congress is authorized to remove specific subjects from the jurisdiction of federal courts when motivated by hostility to their substantive decisions. According to the traditional view, Congress is free to use its power in this manner. While most traditionalists …
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Anthony J. Bellia
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …
Application Of The Abstention Doctrine To Inverse Condemnation Actions In Federal Court , John T. Harris
Application Of The Abstention Doctrine To Inverse Condemnation Actions In Federal Court , John T. Harris
Pepperdine Law Review
No abstract provided.
A Muddy Decision - The High Court Fails To Define The Corps' Wetland Jurisdiction In Rapanos V. United States, Jill Lambird
A Muddy Decision - The High Court Fails To Define The Corps' Wetland Jurisdiction In Rapanos V. United States, Jill Lambird
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen
Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen
Pepperdine Law Review
No abstract provided.
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
Pepperdine Law Review
After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …
Remand: One Constitution, One Standard, Stephen E. Abraham, William M. Hensley
Remand: One Constitution, One Standard, Stephen E. Abraham, William M. Hensley
Pepperdine Law Review
No abstract provided.
The Sosa Standard: What Does It Mean For Future Ats Litigation?, Virginia Monken Gomez
The Sosa Standard: What Does It Mean For Future Ats Litigation?, Virginia Monken Gomez
Pepperdine Law Review
No abstract provided.
On The Efficient Deployment Of Rules And Standards To Define Federal Jurisdiction, Jonathan R. Nash
On The Efficient Deployment Of Rules And Standards To Define Federal Jurisdiction, Jonathan R. Nash
Vanderbilt Law Review
Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but they have not recognized the relationship to the rule-standard distinction, nor more importantly have they considered the importance of where discretion enters the jurisdictional calculus. This Article argues that predictability and efficiency make it normatively desirable to have rules predominate jurisdictional boundaries and thus to …
The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund
The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund
Paul Lund
Although the procedure for removing cases from state to federal court has existed for nearly 225 years, removal remains one of the most controversial aspects of federal jurisdictional law. Each year, more than 30,000 civil cases are removed from state to federal court, and many of those cases involve more than one defendant. One of the most frequently litigated issues in these cases has involved when the notice of removal must be filed. Prior to a recent amendment, the statute governing removal, 28 U.S.C. § 1446(b), required that a notice of removal be filed within thirty days of service on …
Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction, Katharine C. Oakley
Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction, Katharine C. Oakley
American Indian Law Review
No abstract provided.
One Nation, Under Securities Fraud: The Third Circuit Notches A Win For Federalism In In Re Lord Abbett Mutual Funds Fee Litigation, Ethan H. Townsend
One Nation, Under Securities Fraud: The Third Circuit Notches A Win For Federalism In In Re Lord Abbett Mutual Funds Fee Litigation, Ethan H. Townsend
Villanova Law Review
No abstract provided.
Comedy Or Tragedy: The Tale Of Diversity Jurisdiction Removal And The One-Year Bar, Michael W. Lewis
Comedy Or Tragedy: The Tale Of Diversity Jurisdiction Removal And The One-Year Bar, Michael W. Lewis
Michael W. Lewis
The current laws governing diversity removal are badly broken. They create counterproductive incentives that have increased the workload of federal courts while rewarding deceptive practices on the part of plaintiffs. Defendants have every incentive to remove even low value cases to federal court, on the chance that the vague and uncertain standards governing amount in controversy issues will allow them to succeed. At the same time, the current rules encourage plaintiffs to conceal the true value of their cases for one-year, to prevent removal to federal court, and then to reveal the true value, while using the one-year bar to …
Slavery, Federalism, And The Constitution: Ableman V. Booth And The Struggle Over Fugitive Slaves , Earl M. Maltz
Slavery, Federalism, And The Constitution: Ableman V. Booth And The Struggle Over Fugitive Slaves , Earl M. Maltz
Cleveland State Law Review
The Article will discuss and analyze the forces that shaped Ableman v. Booth, one of the most dramatic confrontations in the long-running dispute over fugitive slaves, the Supreme Court's disposition of the case, and the aftermath of the decision. The Article will begin by describing the state of the dispute over fugitive slaves in the mid-1850s. The Article will then recount the events that brought Ableman to the Supreme Court and analyze the Court's opinion. Finally, the Article will discuss the aftermath and significance of the dispute.
Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck
Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck
Articles in Law Reviews & Other Academic Journals
The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational …
Opening The Floodgates: The Roberts Court's Decision In Rapanos V. United States Spells Trouble For The Future Of The Waters Of The United States, Bill Currie
Villanova Environmental Law Journal
No abstract provided.
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Journal Articles
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …
Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton
Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton
Publications
This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …