Law Commons^™

Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis

Faculty Publications

Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice. …

The Power Of "So-Called Judges", Tara Leigh Grove

Faculty Publications

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Faculty Publications

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Hybridizing Jurisdiction, Scott Dodson

Faculty Publications

Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad …

The Complexity Of Jurisdictional Clarity, Scott Dodson

Faculty Publications

The ideal of clear and simple jurisdictional rules seems like a no-brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates …

The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Faculty Publications

This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the …

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Faculty Publications

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, …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

The Domestic Relations Exception To Federal Jurisdiction: Rethinking An Unsettled Federal Courts Doctrine, Michael Ashley Stein

Faculty Publications

No abstract provided.

Ripeness And The Constitution, Gene R. Nichol

Faculty Publications

No abstract provided.