Law Commons^™

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Why Care About The Polar Bear?: Economic Analysis Of Natural Resources Law And Policy [Outline], Lisa Heinzerling

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

1 page.

"Lisa Heinzerling, Georgetown Law School" -- Agenda

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba. The most basic issue in Hamdan was whether the Supreme Court had jurisdiction to hear the case. Justice Scalia's dissenting opinion argued that the Detainee Treatment Act of 2005 stripped the Supreme Court and all other courts of jurisdiction to hear habeas cases such as Hamdan's.

Hamdan argued in the Supreme Court that to read the Detainee Treatment Act to …

The Retrogressive Flaw Of Chapter 15 Of The Bankruptcy Code: A Lesson From Maritime Law, John J. Chung

Law Faculty Scholarship

No abstract provided.

The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Complete Preemption And The Separation Of Powers, Trevor W. Morrison

Cornell Law Faculty Publications

This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which …

Jurisdictionality And Bowles V. Russell, Scott Dodson

Faculty Publications

On June 14, 2007, the Supreme Court decided Bowles v. Russell, a case watched primarily by procedure geeks but one which may have enormous impact for courts and litigators. It addressed a ubiquitous but confusing question of jurisdictional characterization: when is a limitation “jurisdictional,” and when is it not? Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions. Whether a particular limitation is jurisdictional or not can be an important question, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, …

First Circuit Interprets Rapanos To Determine Which Test To Apply, Jonathan Lew

Sea Grant Law Fellow Publications

No abstract provided.

Jurisdiction, Merits, And Substantiality, Howard M. Wasserman

Faculty Publications

No abstract provided.

Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational …

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Forum Defendant Rule In Arkansas, Scott Dodson

Faculty Publications

Section 1441(b) of the removal statute prohibits removal of a diversity case if a defendant is a citizen of the state in which the case was originally filed. The bar to removal is known as the Forum Defendant Rule. Is removal in violation of the Forum Defendant Rule a jurisdictional or nonjurisdictional defect? The characterization matters because a jurisdictional defect can be raised at any time, while a nonjurisdictional defect must be raised within a specific period of time or is waived. The Supreme Court has not resolved the characterization, but a number of circuit courts, including the Eighth Circuit, …

Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This essay explores the Mishkin's theory of protective jurisdiction and applyies it to contemporary controversies.

Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan

Faculty Scholarship

We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …

Toward A Framework Statute For Supranational Adjudication, Ernest A. Young

Faculty Scholarship

No abstract provided.

Extraterritorial Criminal Jurisdiction: Bigger Picture Or Smaller Frame?, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

The authors review extensively Canadian law and practice on the exercise of extraterritorial criminal jurisdiction, and the extent to which that may have changed in recent years. They conclude that, while there are now many more instances of Canada asserting extraterritorial jurisdiction, any change in policy is more apparent than real. What has changed is how often the situations that prompt extraterritorial jurisdiction arise, particularly in that there are now many international treaties requiring Canada to exercise jurisdiction in this way. The authors also argue that this policy of cautious expansion and constructive engagement with international practice is desirable and …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Voting Rights In California: 1982-2006, Joaquin G. Avila, Eugene Lee, Terry Ao

Faculty Articles

The article provides a comprehensive description of voting discrimination in California from 1982 to 2006. This article was presented as a report to Congress during the 2006 reauthorization and amendments to the Voting Rights Act, 42 U.S.C. § 1973, et seq. The authors focus on the continued necessity for Section 5 review of changes affecting voting and for a bilingual election process in selected jurisdictions. In effect since 1965, Section 5 requires covered jurisdictions to submit all voting changes for approval to either the United States Attorney General or the United States District Court for the District of Columbia. The …

Deference And Democracy, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified its …

Catching Up With The Past: Recent Decisions Of The Inter-American Court Of Human Rights Addressing Gross Human Rights Violations Perpetrated During The 1970-1980s, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

Scholarly Works

Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Claims Under The Administrative Procedure Act Before The Court Of International Trade — A General Overview And Analysis Of Significant Recent Jurisprudence, Mark A. Moran, Wentong Zheng

UF Law Faculty Publications

At first blush, the subject matter of this paper would seem a particularly anomalous topic for discussion at a conference devoted to the jurisprudence of the U.S. Court of International Trade (“CIT”). After all, among the some four thousand published decisions the CIT has issued since its creation in 1980, relatively few have involved causes of action predicated explicitly on the Administrative Procedure Act (“APA”). One might reasonably ask why we should bother devoting an entire panel discussion to an issue that so infrequently commands the CIT’s attention.

The first answer is that all is not as it seems, and …

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Is A Guardian The Alter Ego Of The Ward?, Lawrence A. Frolik

Articles

A guardian has a fiduciary relationship to the ward, but what exactly does that mean? Certainly a guardian is expected to act in the best interests of the ward, but how are those interests determined? Guardians are encouraged to act just as the ward would, but that implies that a guardian is closer to being an agent of the ward than a fiduciary. Yet a guardian must reconcile that agent like duty with obligations to the court who appointed him. In light of the perceived value of implementing the wishes of the ward, increasingly, appointing courts have come to treat …

The Regulation Of Judicial Ethics In The Federal System: A Peek Behind Closed Doors, Arthur D. Hellman

Articles

Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a case if (among other circumstances) the judge's impartiality "might reasonably be …