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Articles 1 - 26 of 26
Full-Text Articles in Law
Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl
Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl
Pepperdine Law Review
Eleventh Amendment sovereign immunity is one of the most confusing areas of constitutional law. The waiver by litigation conduct doctrine represents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have not precisely defined the extent to which waiver in a prior proceeding might extend to a future one. The Patent Trial and Appeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial and Appeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III …
Sovereign Immunity And The Crisis Of Constitutional Absolutism: Interpreting The Eleventh Amendment After Alden V. Maine, Matthew Mustokoff
Sovereign Immunity And The Crisis Of Constitutional Absolutism: Interpreting The Eleventh Amendment After Alden V. Maine, Matthew Mustokoff
Maine Law Review
Toward the end of her article, The History of Mainstream Legal Thought, Elizabeth Mensch identifies federalism as a dominant theme in recent Supreme Court decisions. The Court's focus on questions of federalism, however, cannot be directly attributed to the emergence of any specific social or political issues dividing champions of strong central government from defenders of state sovereignty. Instead, the Court's scrutiny seems to have arisen from a perplexing, frustrating, and self-contradictory body of Eleventh Amendment jurisprudence and the perpetual call for judicial clarification it has produced. While the text of the Eleventh Amendment is unambiguous—its language specifically bestows immunity …
Reverse Political Process Theory, Aaron Tang
Reverse Political Process Theory, Aaron Tang
Vanderbilt Law Review
Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of …
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky
Touro Law Review
No abstract provided.
Court Of Appeals Of New York - Giaquinto V. Comm’R Of New York State Dep’T Of Health, Heather Wine
Court Of Appeals Of New York - Giaquinto V. Comm’R Of New York State Dep’T Of Health, Heather Wine
Touro Law Review
No abstract provided.
California V. Deep Sea Research: Leashing In The Eleventh Amendment To Keep Sinking Shipwreck Claims Afloat, Paul Neil
Pepperdine Law Review
No abstract provided.
Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth
Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth
Vanderbilt Journal of Transnational Law
Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …
The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh
The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh
Michigan Law Review
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …
State Employers Are Not Sovereign: By Analogy, Transfer The Market Participant Exception To The Dormant Commerce Clause To States As Employers, Lara Gardner
Chicago-Kent Law Review
States should be treated as market participants and not be given sovereign immunity under the Eleventh Amendment when they are acting as private employers. Through an expansive reading of the Eleventh Amendment, the Supreme Court has restricted the right of state employees to sue under federal statutes intended to protect employees when the state is the employer and claims sovereign immunity. Under the market participant exception to the dormant Commerce Clause, if a state is acting as a market participant, rather than as a market regulator, it is no longer bound by the restraints of the Commerce Clause. The reasons …
Dignity: The New Frontier Of State Sovereignty, Scott Dodson
Dignity: The New Frontier Of State Sovereignty, Scott Dodson
Oklahoma Law Review
No abstract provided.
Narrowing The Nation's Power: The Supreme Court Sides With The States, By John T. Noonan, Jr., Matthew Fogelson
Narrowing The Nation's Power: The Supreme Court Sides With The States, By John T. Noonan, Jr., Matthew Fogelson
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
The Rhetoric Of Constitutional Law, Erwin Chemerinsky
The Rhetoric Of Constitutional Law, Erwin Chemerinsky
Michigan Law Review
I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …
Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein
Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein
University of Michigan Journal of Law Reform
This Article examines the difficulties involved in translating the social model of disability into the idiom of constitutional law. The immediate focus is University of Alabama v. Garrett. Both parts of this Article consider how disability rights claims collide with a discourse of legitimacy in constitutional law. Part I focuses on the arguments presented in several major Briefs filed in support of Garrett. Constitutional doctrines are conceived as paring tools and it is shown how the Court used these doctrines to easily pare down the body of evidence Garrett's lawyers sought to claim as relevant in justifying the ADA …
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
University of Michigan Journal of Law Reform
Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …
Alden V. Maine And State Sovereign Immunity Original Intent Or An Intent Congenial To The Court's Desires, Jeffrey H. Canja
Alden V. Maine And State Sovereign Immunity Original Intent Or An Intent Congenial To The Court's Desires, Jeffrey H. Canja
Cleveland State Law Review
In Alden v. Maine the Supreme Court considered whether Congress, pursuant to its Article I powers, can subject a nonconsenting state to a private suit for damages in the state's own courts. Alternatively viewed, the question was whether a state has sovereign immunity which precludes such suits. The Supreme Court affirmed, holding that Article I of the Constitution does not grant Congress the power to subject a nonconsenting state to a private suit for damages in the state's own courts. The decision represents a direct extension of the federalism developed by the Court in Seminole Tribe of Florida v. Florida, …
A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel
A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel
Oklahoma Law Review
No abstract provided.
The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano
The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano
Vanderbilt Journal of Transnational Law
The globalization of the United States economy in the latter half of the twentieth century has fostered greater interaction between the United States and foreign states and their instrumentalities. As a result, the likelihood of legal disputes arising between United States entities and foreign states has increased. Traditionally, foreign states have been immune from suit in United States courts. However, the Foreign Sovereign Immunities Act (FSIA), enacted in 1976, specifies instances in which United States courts may deny immunity to foreign states and exercise jurisdiction over them. Under one provision of the FSIA, a foreign state may forfeit its immunity …
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Cleveland State Law Review
A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state …
Constitutional Law—State Sovereign Immunity—Nevada V. Hall, 440 U.S. 410 (1979), Richard H. Pierson
Constitutional Law—State Sovereign Immunity—Nevada V. Hall, 440 U.S. 410 (1979), Richard H. Pierson
Washington Law Review
The doctrine of state sovereign immunity in the courts of another state and the federal courts will be examined in section I of this casenote. In section II, the Court's reasoning in Nevada v. Hall will be discussed. The Court's conclusion that the Constitution places no limit on a state court's jurisdiction over a sister state will be challenged in part A of section III. The ambiguities in the Hall opinion that render the scope of a state court's jurisdiction uncertain and the desirability of limiting that jurisdiction will be examined in part B of section III. Finally, this note …
Constitutional Law—State Sovereign Immunity—Nevada V. Hall, 440 U.S. 410 (1979), Richard H. Pierson
Constitutional Law—State Sovereign Immunity—Nevada V. Hall, 440 U.S. 410 (1979), Richard H. Pierson
Washington Law Review
The doctrine of state sovereign immunity in the courts of another state and the federal courts will be examined in section I of this casenote. In section II, the Court's reasoning in Nevada v. Hall will be discussed. The Court's conclusion that the Constitution places no limit on a state court's jurisdiction over a sister state will be challenged in part A of section III. The ambiguities in the Hall opinion that render the scope of a state court's jurisdiction uncertain and the desirability of limiting that jurisdiction will be examined in part B of section III. Finally, this note …
Recent Decisions, Gayle B. Carlson, Michael P. Coury, Celia J. Collins, Spencer M. Sax
Recent Decisions, Gayle B. Carlson, Michael P. Coury, Celia J. Collins, Spencer M. Sax
Vanderbilt Journal of Transnational Law
ACT OF STATE DOCTRINE-ACT OF STATE DOCTRINE DOES NOT PRECLUDE ADJUDICATION OF ANTITRUST CLAIM INVOLVING ALLEGED FRAUDULENT PROCUREMENT OF FOREIGN PATENTS
Gayle B. Carlson
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ADMIRALTY-DAMAGES FOR WRONGFUL DEATH ON THE HIGH SEAS ARE LIMITED TO PECUNIARY LOSS
Michael P. Coury
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ANTITRUST-E.E.C. TREATY-JOINT VENTURE AGREEMENT THAT OPERATES TO PRECLUDE ENTRY INTO A GEOGRAPHIC MARKET IS PROHIBITED UNDER ARTICLE 85 OF THE E.E.C. TREATY
Celia J. Collins
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CONSTITUTIONAL LAW-TEAS STATUTE'S DENIAL OF FREE EDUCATION TO ILLEGAL ALIENS VIOLATES EQUAL PROTECTION CLAUSE AND IS PREEMPTED BY THE IMMIGRATION AND NATIONALITY ACT
Spencer M. Sax
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SOVEREIGN IMMUNITY-FOREIGN SOVEREIGN IMMUNITIES ACT …
The Latest Event In The Confused History Of Municipal Tort Liability, J. Bart Budetti, Gerald L. Knight
The Latest Event In The Confused History Of Municipal Tort Liability, J. Bart Budetti, Gerald L. Knight
Florida State University Law Review
No abstract provided.
Recent Decisions, Aubrey W. Bogle, Iii, Edward H. Lueckenhoff, Clark C. Siewert, Joe B. Foltz, Michael P. Peck
Recent Decisions, Aubrey W. Bogle, Iii, Edward H. Lueckenhoff, Clark C. Siewert, Joe B. Foltz, Michael P. Peck
Vanderbilt Journal of Transnational Law
Admiralty--Requirement of Minimum Contacts for Jurisdiction to Attach Property of Nonresident Defendant is not Applicable to Maritime Attachment
Aubrey W. Bogle, III
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Buy American Statutes--New Jersey--Constitutionality of Buy American Statute Upheld by State Supreme Court
Edward H. Lueckenhoff
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Citizenship--The Fourteenth Amendment requires Proof by Clear, Convincing, and Unequivocal Evidence that Relinquishment of United States Citizenship is Voluntary
Clark C. Siewert
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Extradition--Double Jeopardy Provision of Extradition Treaty Applies even Where Crime Committed before Ratification
Michael P. Peck
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Sovereign Immunity--Service of Process in the United States on a Permanent Mission to the United Nations must Conform to the …
Sovereign Immunity - An Argument Con, Steven A. Sindell
Sovereign Immunity - An Argument Con, Steven A. Sindell
Cleveland State Law Review
Under the concept of sovereign or governmental immunity, a state may not be sued in tort without its consent. This doctrine, though the subject of repeated judicial challenges, is adhered to in a significant number of jurisdictions. It is the contention of this article that the reason for the rule no longer exists and that it should, therefore, be abolished as a controlling legal principle. Moreover, it is submitted that sovereign immunity violates the due process and equal protection.
Soverign Immunity - Suit For Specific Relief Against Federal Officers - United States Not A Necessary Part, Steven P. Davis
Soverign Immunity - Suit For Specific Relief Against Federal Officers - United States Not A Necessary Part, Steven P. Davis
Michigan Law Review
Plaintiff, claiming right to possession, brought an ejection action in a Georgia court against both the government officer in possession of the land and the United States. Defendants removed the case to a United States district court and moved for dismissal. The district court granted defendants' motion to dismiss, holding that the court had no jurisdiction over the claim because the suit in substance and effect was against the United States and the United States had neither consented to be sued nor waived its immunity from suit. On appeal to the Court of Appeals for the Fifth Circuit, held, …
Constitutional Law: Sovereign Waiving Privilege Of Immunity From Suit Can Limit The Amount To Be Recovered, B. T. Moynahan Jr.
Constitutional Law: Sovereign Waiving Privilege Of Immunity From Suit Can Limit The Amount To Be Recovered, B. T. Moynahan Jr.
Kentucky Law Journal
No abstract provided.