Law Commons^™

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law Review

For many years, courts and commentators have been concerned about a phenomenon in class action litigation referred to as objector "blackmail." The term "blackmail" is used figuratively rather than literally; so-called objector "blackmail" is simply a specific application of the general concern with legal regimes that permit one or more individuals to "hold out" and disrupt collective action. The holdout problem in class action litigation stems from the following series of events: When a class action is settled, class members who do not like the proposed settlement are permitted to file objections with the federal district court that must approve …

A Uniform System For The Enforceability Of Forum Selection Clauses In Federal Courts, Ryan T. Holt

Vanderbilt Law Review

In the early 1980s, a successful and ambitious Alabama businessman named Walter H. Stewart purchased a failing local copying business. Through the Stewart Organization, a corporation he controlled, Stewart sought to steer this troubled business to the realm of profitability. To do so, he entered into a dealership contract with Ricoh Corporation, a national manufacturer of copy machines that conducted its operations in New York. Unfortunately, their relationship soured. Stewart sued Ricoh in an Alabama federal district court, basing jurisdiction on diversity of citizenship. Ricoh did not want to litigate in Alabama, and the original dealership contract seemed to provide …

Neglected Justices: Discounting For History, G. Edward White

Vanderbilt Law Review

The category of "neglected Justices" presupposes meaningful baselines for evaluating judicial reputations. A Justice cannot be deemed "neglected" except against the backdrop of some purported consensus about that Justice's reputation and the reputations of other Justices. Moreover, when the category of "neglected Justices" encompasses the performance of Justices who served in different time periods, it also presupposes that evaluative baselines for Justices can retain their integrity in the face of historical change and historical contingency.

This Article argues that when one discounts for history in the process of evaluating judicial reputations, the effects of history are sufficiently powerful to throw …

Rethinking The Federal Role In State Criminal Justice, Nancy J. King, Joseph L. Hoffmann

Vanderbilt Law School Faculty Publications

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …

Judicial And Arbitral Proceedings And The Outer Limits Of The Continental Shelf, John E. Noyes

Vanderbilt Journal of Transnational Law

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution--the Commission on the Limits of the Continental Shelf--to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International …

Agency Statutory Interpretation And Policymaking Form, Kevin M. Stack

Vanderbilt Law School Faculty Publications

In this short symposium contribution, I take up this invitation to examine the relevance of the agency's policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I …