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Articles 1 - 10 of 10
Full-Text Articles in Supreme Court of the United States
Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves
Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves
Michigan Law Review Online
This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …
A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach
A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach
Michigan Law Review
Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Michigan Law Review
In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand
Michigan Law Review
The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of …
Standing's Expected Value, Jonathan Remy Nash
Standing's Expected Value, Jonathan Remy Nash
Michigan Law Review
This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …
"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond
"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond
Michigan Law Review First Impressions
The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …
Loss Of Protection As Injury In Fact: An Approach To Establishing Standing To Challenge Environmental Planning Decisions, Miles A. Yanick
Loss Of Protection As Injury In Fact: An Approach To Establishing Standing To Challenge Environmental Planning Decisions, Miles A. Yanick
University of Michigan Journal of Law Reform
As currently interpreted by the United States Supreme Court, Article III of the Constitution creates a significant hurdle for plaintiff citizen groups seeking standing to challenge environmental planning or management decisions. In particular, plaintiffs have had difficulty in making the required showing of an 'injury in fact" where an agency has not yet approved a site-specific action but has approved only a general plan for an area to govern future site-specific actions. The Supreme Court has not articulated a clear rule for standing to challenge the latter type of agency decision making, and the courts of appeals for the various …
What's Standing After Lujan? Of Citizen Suits, "Injuries," And Article Iii, Cass R. Sunstein
What's Standing After Lujan? Of Citizen Suits, "Injuries," And Article Iii, Cass R. Sunstein
Michigan Law Review
In this article, I have two principal goals. The first is to explain why Lujan's invalidation of a congressional grant of standing is a misinterpretation of the Constitution. It is now apparently the law that Article III forbids Congress from granting standing to "citizens" to bring suit. But this view, building on an unfortunate innovation in standing law by Justice William 0. Douglas, is surprisingly novel. It has no support in the text or history of Article III. It is essentially an invention of federal judges, and recent ones at that. Certainly it should not be accepted by judges …
The Special Relationship Rule: Is It Consistent With The Waiver Of Sovereign Immunity? - A Study Of Kircher V. City Of Jamestown, Brian T. Cohen
The Special Relationship Rule: Is It Consistent With The Waiver Of Sovereign Immunity? - A Study Of Kircher V. City Of Jamestown, Brian T. Cohen
Touro Law Review
No abstract provided.