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Full-Text Articles in Law
The Active Vices, Benjamin Johnson
The Active Vices, Benjamin Johnson
Journal Articles
Alexander Bickel's pathbreaking idea of the "passive virtues" attempted to explain and justify the Supreme Court's power to control its docket. He proposed that the Court's extensive discretion allows it to remain passive and avoid politically perilous cases, preserving its institutional legitimacy until such time as durable principles are at stake. This theory remains one of the most influential ideas in legal scholarship, but is dangerously incomplete. Discretion is a double-edged sword, empowering the Court not only to avoid politics, but also to engage in it. In other words, a policy-motivated Court can use its agenda-setting power to target highly …
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Journal Articles
Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …