Law Commons^™

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 …

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …

Derivation Of Positive From Natural Law Revisited, Santiago Legarre

Journal Articles

Aquinas's account of the relationship of natural law to positive law has a general theory: every just human law is derived from the law of nature; and two, subordinate theorems: derivation is always either per modum conclusionis or per modum determinationis. I will call them sub-theorems. According to the first sub-theorem "something may be derived from the natural law . . . as a conclusion from premises." For example, "that one must not kill may be derived as a conclusion from the principle that one must do harm to no one." For one reason or another, the theory of derivation …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Federal Regulation Of State Court Procedures, Anthony J. Bellia

Journal Articles

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …

United States Opposition To The 1998 Rome Statute Establishing An International Criminal Court: Is The Court's Jurisdiction Truly Complementary To National Criminal Jurisdictions?, Jimmy Gurule

Journal Articles

Although the United States supports the creation of a permanent International Criminal Court (ICC), it opposes such a court as set forth in the 1998 Rome Statute because it leaves open the potential for United States military personnel and government officials to be prosecuted for unintended loss of civilian life. Can the United States formulate a legal argument to support its view that inadvertent civilian casualties should not be considered a war crime within the jurisdiction of the ICC? The article argues that it can because the ICC’s jurisdiction under the Rome Statute is not complementary to national prosecutions held …

Taxing Citizens In A Global Economy, Michael S. Kirsch

Journal Articles

This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income.

Despite this broad general assertion of taxing jurisdiction, Congress allows citizens abroad to exclude a limited amount of their income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

Universal Criminal Jurisdiction, Douglass Cassel

Journal Articles

Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.

Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. The Recommendation applies whether or not an accused is in custody and does not address the separate topics of universal jurisdiction in civil cases or the immunities of senior government officials before foreign national courts.

Universal criminal jurisdiction developed over time as a …

Empowering United States Courts To Hear Crimes Within The Jurisdiction Of The International Criminal Court, Douglass Cassel

Journal Articles

United States courts have only incomplete and uneven jurisdiction, most acquired piecemeal and only in recent years, to prosecute genocide, war crimes and crimes against humanity committed outside our borders. Recent developments in international law and practice-especially the heightened commitment of democracies including the United States to end impunity for atrocities, and the imminent prospect of a permanent International Criminal Court (ICC) with worldwide jurisdiction-suggest the need to expand and rationalize the jurisdiction of U.S. courts to make it coextensive with that of the ICC.

It now appears all but certain that the ICC will come into being in the …

The Erie Doctrine Revisited: How A Conflicts Perspective Can Aid The Analysis, Joseph P. Bauer

Journal Articles

I have taught Civil Procedure for the past twenty-five years. Having returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examining the Erie doctrine from the vantage point of both of these subject areas. My goal was to see whether a combination of learning from these two related disciplines would introduce additional coherence into the analysis of this topic.

In one sense, the Erie doctrine and traditional choice of law determinations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law …

The Icc's New Legal Landscape: The Need To Expand U.S. Domestic Jurisdiction To Prosecute Genocide, War Crimes And Crimes Against Humanity, Douglass Cassel

Journal Articles

The United States was one of only seven nations to vote against the treaty. The ensuing debate within the United States has properly focused on whether the United States can and should ratify the treaty or, if not, whether as a non-party the United States should support or oppose the new court. Largely overlooked, however, are two separate but related questions: (1) should the existing, incomplete jurisdiction of U.S. courts over crimes within the ICC Statute be expanded to ensure that such crimes may also be prosecuted in U.S. courts, under universal jurisdiction or other bases allowed by international law?; …

Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco

Journal Articles

The extent of Congress's authority to control the jurisdiction of the federal courts has been the subject of unending academic debate. The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction. There has been no shortage, however, of commentators who have taken exception to that view. The heart of the debate lies in whether Congress is authorized to remove specific subjects from the jurisdiction of federal courts when motivated by hostility to their substantive decisions. According to the traditional view, Congress is free to use its power in this manner. While most traditionalists …

May A Federal Court Remand A Case To State Court After Federal Claims Have Been Deleted?, Joseph P. Bauer

Journal Articles

This Article provides a preview of Carnegie-Mellon University v. Honorable Maurice B. Cohill, Jr., argued before the Supreme Court of the United States on November 10, 1987. This case concerns the circumstances under which a lawsuit, properly commenced in a state court and then removed before trial to a federal court, may be sent back (remanded) to the state court.

On one level, this case seems only to involve technical interpretations of federal statutes governing procedure in the federal courts. At another level, however, it involves more general and important issues. Among these are how to allocate judicial power …

Withdrawing Jurisdiction From Federal Courts, Charles E. Rice

Journal Articles

Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …

Congress And The Supreme Court's Jurisdiction, Charles E. Rice

Journal Articles

When a ruling of the supreme court meets with Congressional disfavor there are several remedies available to Congress. If the decision is not on a constitutional level, a later statutory enactment will suffice to reverse or modify the ruling. If, however, the Court's decision is an interpretation of a constitutional mandate, such as the requirement of the fourteenth amendment that legislative districts be apportioned according to population, then a statute could not reverse the decision because the statute itself would be subject to that constitutional mandate as defined by the Court.

The obvious method of reversing a Supreme Court interpretation …

Symposium Proceedings: Congressional Limits On Federal Court Jurisdiction, Charles E. Rice

Journal Articles

Judge Sloviter: Professor Rice, your view of the constitutional scheme is that Congress has the power to make surgical excisions to the jurisdictions of the federal courts. I wonder if you would comment on what one of my colleagues might call the worst case scenario. That is, whether Congress could by legislation abolish all inferior federal courts and eliminate all Supreme Court appellate jurisdiction. What then would remain of the judicial power?

World-Wide Volkswagen Corp. V. Woodson: Reflections On The Road Ahead, Kenneth F. Ripple, Mollie A. Murphy

Journal Articles

During its past several terms the Supreme Court of the United States has, after a long period of inactivity, engaged in a reexamination of the constitutional limitations on state court jurisdiction. Last term, in World-Wide Volkswagen Corp. v. Woodson, this reexamination reached a new plateau. Woodson significantly elucidated the constitutional policy considerations underlying this area. Yet, as so often occurs in constitutional litigation, the resolution of old doubts has also brought into sharper focus other yet unresolved issues.

This article has two purposes. First, it will assess the significance of Woodson in the overall doctrinal development of jurisdictional standards. Second, …

Book Review, Clarence Emmett Manion

Journal Articles

Reviewing: THE PRICE OF PERFECT JUSTICE. By Macklin Fleming. The Adverse Consequences of Current Legal Doctrine on the American Courtroom. Justice of the California Court of Appeals (Basic Books, Inc. New York).