Law Commons^™

The Judicial Reforms Of 1937, Barry Cushman

William & Mary Law Review

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

First, We'll Neuter All The Judges, A. Benjamin Spencer

Popular Media

No abstract provided.

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Disaggregating Nationwide Injunctions, Michael T. Morley

Scholarly Publications

Nationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns.

This Article presents a taxonomy of the five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based …

National Injunctions And Preclusion, Zachary D. Clopton

Michigan Law Review

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit …

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson

Articles

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …

Nationwide Injunctions, Rule 23(B)(2), And The Remedial Powers Of The Lower Courts, Michael T. Morley

Scholarly Publications

No abstract provided.

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications & Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …

In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis

William & Mary Bill of Rights Journal

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments—one based on the historical relationship between law and equity and the other based on separation of powers principles—could quite …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman

Doug Rendleman

No abstract provided.

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel

Michigan Law Review

In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement …

Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells

Faculty Publications

Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's …

Citizen Suits And Civil Penalties Under The Clean Water Act, James L. Thompson

Michigan Law Review

Part I briefly describes the division that currently exists between the Fourth, Fifth, and First Circuits. Part II analyzes the arguments relating to statutory construction, focusing on statutory language and structure as illuminated by legislative history. Part III examines the broader policy considerations arising when courts decide questions of citizen suit jurisdiction under section 505. Resolution of this issue has usually entailed an extreme interpretation of section 505, either very rarely allowing suits for past violations or allowing them in all cases. Parts II and III argue that the most appropriate response to this problem is actually the less frequently …

Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn

Michigan Law Review

This Article examines the formal powers that are available to the federal courts to meet this situation. Part I places the problem in perspective, describing the party structure of the institutional reform decree, the :financial burdens it places on the government defendants, and the relationship of these defendants to the fiscal authorities. Part II surveys the coercive powers historically available to the federal courts sitting in equity. Part III discusses the use of these devices against government defendants who claim financial impossibility. It emphasizes the limited recognition of impossibility, the power to compel the defendants to use available resources efficiently …

Controlling The Structural Injunction, Robert F. Nagel

Publications

No abstract provided.

The Propriety Of Section 10(J) Bargaining Orders In Gissel Situations, Michigan Law Review

Michigan Law Review

The courts have split on the question of whether a bargaining order constitutes ''just and proper" relief under section 10(j). This Note contends that such an order is always just in a Gissel situation but that a district court may properly issue one only in situations where the Board's prior decisions clearly establish the relevant labor policy and indicate a high probability that the Board will eventually issue a Gissel bargaining order. Part I of the Note develops the criteria relevant to determining what kind of temporary relief is "just." Although section 10(j) does not itself define these criteria, the …

Federal Courts - Declaratory Judgment - A Federal Court May Grant Declaratory Relief From A State Statute Allegedly Unconstitutional As Applied If State Prosecution Is Threatened, But Not Pending, Rachel Wolkin

Villanova Law Review

No abstract provided.

Injunctions - Section One Of The Civil Rights Act Of 1871 Is An Expressly Authorized Exception To The Federal Anti-Injunction Statute, Kenneth I. Levin

Villanova Law Review

No abstract provided.

Federal Removal And Injunction To Protect Political Expression And Racial Equality: A Proposed Change, Christopher B. Mueller

Publications

No abstract provided.

Recent Decisions, Michigan Law Review

Michigan Law Review

The recent decisions consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Equity-Intervention

Michigan Law Review

A Kansas statute forbids the operation of theatres on Sunday. Appellee obtained an interlocutory injunction restraining "the Attorney General of the State of Kansas, and his subordinates . . . and every other person acting or attempting to act for said defendants" from enforcing the statute. Following this temporary injunction the appellee continued to operate his theatres on Sunday, and when the municipal authorities of Winfield and Eldorado threatened to enforce municipal ordinances prohibiting Sunday shows, the appellee served them with copies of the preliminary order against the attorney general, and warned them that contempt proceedings would be instituted if …

The Courts As Authorized Legal Advisors Of The People, Edson R. Sunderland

Articles

It is doubtful whether American legal institutions have witnessed a more far-reaching procedural reform since New York adopted its Code of Civil Procedure in 1848, than the movement toward the authorization of judicial declarations of rights which has received its chief impetus from legislation enacted in three American States during the past year. A somewhat timid step in this direction was taken by the New Jersey Chancery Practice Act of 1915, but it disclosed a want of confidence in the broad effectiveness of the remedy. Now for the first time American legislation has definitely committed itself to the principle that …

Nebulous Injunctions, Edgar N. Durfee

Articles

Injunctive relief is sought against alleged wrongdoing which is merely incidental to the conduct of a legitimate business. The wrong is established and the court is satisfied that an injunction should issue. Yet some nice questions remain as to the scope and terms of the decree.