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Articles 31 - 60 of 535
Full-Text Articles in Law
Statutes In Common Law Courts, Jeffrey Pojanowski
Statutes In Common Law Courts, Jeffrey Pojanowski
Jeffrey A. Pojanowski
The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman
The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman
Barry Cushman
This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the …
Trending @ Rwu Law: Brittani Mulholland's Post: Women In Robes: Bigger And Better Than Ever: October 12, 2016, Brittani Mulholland
Trending @ Rwu Law: Brittani Mulholland's Post: Women In Robes: Bigger And Better Than Ever: October 12, 2016, Brittani Mulholland
Law School Blogs
No abstract provided.
Regulating Patent Assertions, Paul Gugliuzza
Regulating Patent Assertions, Paul Gugliuzza
Faculty Scholarship
Recent years have seen a proliferation of statutes regulating and lawsuits challenging patent enforcement conduct. The Federal Circuit, however, has held that acts of patent enforcement are illegal only if there is clear and convincing evidence both that the patent holder’s infringement allegations were objectively baseless and that the patent holder knew or should have known its allegations were baseless. This chapter summarizes recent efforts by state governments and the federal government to control patent enforcement behavior, questions the broad immunity the Federal Circuit has conferred on patent holders, and seeks to improve pending federal legislation governing patent enforcement. In …
Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson
Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson
Benjamin L. Berger
This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system …
Compulsory Medical Treatment - A Moral Evaluation, Robert H. Springer, S.J.
Compulsory Medical Treatment - A Moral Evaluation, Robert H. Springer, S.J.
The Catholic Lawyer
No abstract provided.
Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie
Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie
Scholarly Articles
None available.
Honoring Dan Meltzer, Bradford R. Clark
Honoring Dan Meltzer, Bradford R. Clark
Notre Dame Law Review
Dan Meltzer was a giant in the field of Federal Courts, and it is hard to overstate his influence on its development. He taught Federal Courts at Harvard Law School and was a long-time co-author of Hart & Wechsler’s The Federal Courts and the Federal System (“Hart & Wechsler ”), the casebook that created the field and shaped how generations of judges, lawyers, and scholars think about complex questions of federal jurisdiction. In addition, Dan enriched the field immeasurably by writing seminal articles on a wide range of Federal Courts topics. His work was characterized by deep knowledge of the …
A History Of The Missouri Court Of Appeals: The Role Of Regional Conflicts In Shaping Intermediate Appellate Court Structure, Jamie Pamela Rasmussen
A History Of The Missouri Court Of Appeals: The Role Of Regional Conflicts In Shaping Intermediate Appellate Court Structure, Jamie Pamela Rasmussen
The Journal of Appellate Practice and Process
No abstract provided.
Attracting Undue Scrutiny On Appeal: An Appellate Judge's Perspective, Marshall L. Davidson Iii
Attracting Undue Scrutiny On Appeal: An Appellate Judge's Perspective, Marshall L. Davidson Iii
The Journal of Appellate Practice and Process
No abstract provided.
Infrequently Asked Questions, Edward T. Swaine
Infrequently Asked Questions, Edward T. Swaine
The Journal of Appellate Practice and Process
If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
Articles
Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …
Weapons Of The Weak: The Prosecutor Of The Icc's Power To Engage The Un Security Council, C. Cora True-Frost
Weapons Of The Weak: The Prosecutor Of The Icc's Power To Engage The Un Security Council, C. Cora True-Frost
Florida State University Law Review
No abstract provided.
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
Notre Dame Law Review
In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …
Honoring Dan Meltzer—Congressional Standing And The Institutional Framework Of Article Iii: A Comparative Perspective, Vickie C. Jackson
Honoring Dan Meltzer—Congressional Standing And The Institutional Framework Of Article Iii: A Comparative Perspective, Vickie C. Jackson
Notre Dame Law Review
In this short Essay, I focus on only one aspect of the broader question of government standing to sue: congressional standing. For one thing, separation of powers problems are more acutely presented in federal level disputes.
Given an increased interest by parts of the Congress, especially the House of Representatives, in seeking to intervene in ongoing litigation, there are pressing new issues in the lower federal courts: U.S. District Court Judge Rosemary Collyer recently upheld congressional standing to challenge an asserted violation of the Appropriations Clause in connection with spending under the Affordable Care Act, while rejecting the House’s standing …
Preface: One Hundred Twenty-Five Years Of The U.S. Court Of Appeals For The Second Circuit: A Brief Project Overview, Robert A. Katzmann
Preface: One Hundred Twenty-Five Years Of The U.S. Court Of Appeals For The Second Circuit: A Brief Project Overview, Robert A. Katzmann
Fordham Law Review
An important part of that 125th anniversary examination is found in the pages that follow: essays by prominent lawyers of the Second Circuit about some of the vital areas of law emanating from our court. Much gratitude is due to the editors of the Fordham Law Review; Michael Cardozo and Bettina Plevan, who painstakingly oversaw the issue; and to the lawyers who contributed their thinking and writings. Six articles have been specially drafted on: First Amendment/civil liberties, by Floyd Abrams; white collar crime, by Robert J. Anello and Miriam L. Glaser; antitrust, by Saul P. Morgenstern, Jennifer B. Patterson, …
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Introduction: Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Fabian Witt
Fordham Law Review
Congress’ Evarts Act, signed into law in 1891, created a new Article III federal court designed almost exclusively to sit as an intermediate appellate court in between the federal trial courts and the U.S. Supreme Court. Congress created the new Evarts Act appellate courts to relieve pressure on the Supreme Court’s growing workload and to create a less arbitrary system of appeals for litigants in the federal trial courts. These twin goals of reducing the Supreme Court’s workload and establishing a meaningful right of appeal produced a set of circuit courts of appeals with a distinctively constrained new role. This, …
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Introduction From The Editors Of Volume 84, Hopi Costello, Matthew Geyer, Brandon Ruben
Fordham Law Review
The U.S. Court of Appeals for the Second Circuit has always held special significance for the Fordham Law Review’s student members. Ennobled by the examples of Fordham Law School and Fordham Law Review alumni Judge Irving Kaufman, Judge William Mulligan, Judge Joseph McLaughlin, and, most recently, Judge Denny Chin, the student members of the Fordham Law Review strive to impact our profession at its highest levels. It is thus with great pleasure and pride that four current students on the Fordham Law Review join this intellectual lineage by contributing the notes written for this commemorative issue, eaching tackles recent …
Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey
Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey
Michigan Journal of Environmental & Administrative Law
There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.
The Supreme Court, when it rendered its decision, seemed to be rectifying a …
The Court After Scalia, Kevin C. Walsh
The Court After Scalia, Kevin C. Walsh
Law Faculty Publications
In this editorial, Professor Walsh surveys the 2015-2016 U.S. Supreme Court term, with particular attention to the effects the late Justice Antonin Scalia's absence had on the Court's decisions.
Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson
Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson
Law Faculty Publications
This essay, first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C., takes as its inspiration the spirit of the rule of law, as laid down in the Magna Carta. Specifically, the author argues that the popular election and reelection of judges undermines the rule of law, and democracy in general, by exposing judges to the manipulations of financial corruption, political intimidation, and the often irrational shifts in popular opinion. To correct this problem, the author calls for amendment of the thirty-nine state constitutions …
Appellate Deference In The Age Of Facts, Kenji Yoshino
Appellate Deference In The Age Of Facts, Kenji Yoshino
William & Mary Law Review
This Article explores the question of how much appellate deference is due to “legislative” facts, or broad social facts about the world, established by the district courts. While it is axiomatic that “adjudicative” facts—which are the “whodunit” facts specific to a case—receive clear error deference on appeal, the Supreme Court has yet to address the degree of deference due to legislative facts. While the dominant view among appellate courts is that legislative facts should only receive de novo review, the practice of the courts has in actuality been much more fitful and inconsistent. The standard may be unsettled in part …
Arbitration Law In Tension After Hall Street: Accuracy Of Finality?, Stanley A. Leasure
Arbitration Law In Tension After Hall Street: Accuracy Of Finality?, Stanley A. Leasure
University of Arkansas at Little Rock Law Review
No abstract provided.
Is The “Arising Under” Jurisdictional Grant In Article Iii Self-Executing?, David R. Dow
Is The “Arising Under” Jurisdictional Grant In Article Iii Self-Executing?, David R. Dow
William & Mary Bill of Rights Journal
No abstract provided.
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
William & Mary Bill of Rights Journal
Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …
The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh
The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh
Journal Articles
This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.
Parliament enacted fire-courts legislation on eight occasions …
A Cause Of Action, Anyone?: Federal Equity And The Preemption Of State Lalw, Henry Paul Monaghan
A Cause Of Action, Anyone?: Federal Equity And The Preemption Of State Lalw, Henry Paul Monaghan
Notre Dame Law Review
In this very brief Essay, I focus on aspects of a topic on which both Danny and I have written and on which our reasoning differed: federal court authority, “sitting in equity,” to enjoin enforcement of state law on federal preemption grounds. In a coercive action brought by the state to enforce the state law, the federal act could of course be set up as a defense. Suppose, however, that alleging “arising under” subject-matter jurisdiction, the plaintiff sues the appropriate state officials to restrain enforcement of the state statute. Many such challenges are readily entertained on the merits, often because …
Revising Our “Common Intellectual Heritage”: Federal And State Courts In Our Federal System, Judith Resnik
Revising Our “Common Intellectual Heritage”: Federal And State Courts In Our Federal System, Judith Resnik
Notre Dame Law Review
This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation. The heritage that Meltzer celebrated and to which he contributed was the outcome of twentieth-century social movements that focused on the federal courts as hospitable venues, serving as vivid sources of rights and remedies. A competing heritage has since …
Insider Trading Law That Works: Using Newman And Salman To Update Dirks'S Personal Benefit Standard, Mark Hayden Adams
Insider Trading Law That Works: Using Newman And Salman To Update Dirks'S Personal Benefit Standard, Mark Hayden Adams
Loyola of Los Angeles Law Review
No abstract provided.