Law Commons^™

Restoring Indian Reservation Status: An Empirical Analysis, Michael K. Velchik, Jeffery Zhang

Articles

In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.

Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good …

In Search Of The First-Round Knockout A Rule 12(B) Primer, Kate Rogers, Leonard Niehoff

Articles

Boxing enthusiasts define success not just by wins and losses but also by knockouts. Many of the greatest fighters in the history of boxing—Rocky Marciano, Mike Tyson, Jack Dempsey, and Sugar Ray Robinson—were known for their knockout punching power. Within the category of knockouts, the gold standard is the first-round knockout, the moment when stunned fans watch a fighter take the opponent out of the contest before either of them has broken a sweat.

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

United States Negotiates Prisoner Exchange to Secure Release of U.S. Soldier Held in Afghanistan • United States Refuses to Grant Visa to Iranian UN Envoy • Multilateral Naval Code of Conduct Aims to Prevent Unintended Conflict in Contested Areas of East and South China Seas • Senate Approves Treaties to Regulate Fishing • United States Indicts Chinese Military Officials for Economic Espionage • U.S. Supreme Court Declines to Terminate Long-Running Efforts to Force Argentina to Pay Defaulted Sovereign Debt • United States Condemns Uganda’s Antigay Law as Violating Human Rights • President Barack Obama Certifies That U.S. Peacekeepers in Mali …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld

Articles

On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran

Articles

In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …

Aggregation And Choice Of Law, Edward H. Cooper

Articles

This is more a conversational gambit than an article. I address a question at the intersection of procedure and choice of law, speaking as a proceduralist rather than a choice-of-law scholar. The question - which may be two questions - addresses the potential interdependence of procedural aggregation devices and choice of law. One part of the question is whether aggregation can justifiably change the choice of law made for some part of an aggregated proceeding. The other part is whether choice-of-law principles can be adapted to facilitate procedurally desirable aggregation. Answers may be sought either in abstract theory or in …

The Federal Courts As A Franchise: Rethinking The Justifications For Federal Question Jurisdiction, Gil Seinfeld

Articles

The components of the Federal Franchise model-procedural homogeneity, cultural conformity, and technical competence-should be familiar. The federal courts' capacity to provide these benefits has not escaped commentators' notice; indeed, there are points of connection between these features of federal court adjudication and the individual fragments of the conventional account.l0 But prior scholarly discussion of these themes has been unsystematic, treating them as (at best) secondary considerations when it comes to the allocation of federal question cases between the state and federal courts. This Article attempts to weave together these previously disconnected strands of thinking about federal court adjudication and to …

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 …

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 …

Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow

Articles

The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …

Rewriting Shutts For Fun, Not To Profit, Edward H. Cooper

Articles

It has not been easy to reconcile contemporary class-action practice with traditional adversary procedure. For that matter, it is not easy to craft a unitary "class-action" procedure that serves well the many different purposes pursued by the many different species of class actions. The practice has flourished, but few would dare say it has really matured. Many problems remain.

Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow

Articles

The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

International Tax Law As International Law, Reuven S. Avi-Yonah

Articles

Is international tax law part of international law? To an international lawyer, the question posed probably seems ridiculous. Of course international tax law is part of international law, just like tax treaties are treaties. But to an international tax lawyer, the question probably seems less obvious, because most international tax lawyers do not think of themselves primarily as international lawyers (public or private), but rather as tax lawyers who happen to deal with crossborder transactions. And indeed, once one delves into the details, it becomes clear that in some ways international tax law is different from "regular" international law. For …

State Immunity Waivers For Suits By The United States, Evan H. Caminker

Articles

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is …

An Alternative And Discretionary § 1367 (Symposium: A Reappraisal Of The Supplemental Jurisdiction Statute, Title 28 U.S.C. 1367), Edward H. Cooper

Articles

Supplemental jurisdiction is a concept too complex to be captured by complicated statutory drafting. That is my proposition. Or, somewhat more accurately, that is my tentative proposition, advanced for consideration alongside the elegant but intricate statutory proposals emerging from the American Law Institute's Federal Judicial Code Revision Project. Professor John Oakley, the Reporter, knows more about supplemental jurisdiction, and has thought more deeply about it, than anyone. He has traveled many roads in continually refining proposed revisions of 28 U.S.C. § 1367. If anyone can capture all the nuances of supplemental jurisdiction in a statute, it is he, assisted by …

Interstate Consolidation: A Comparison Of The Ali Project With The Uniform Transfer Of Litigation Act (American Law Institute Complex Litigation Project: A Symposium, In Memoriam Donald Theodore Trautman), Edward H. Cooper

Articles

The Uniform Transfer of Litigation Act (UTLA) was undertaken for purposes simpler than the mass consolidation of multiparty, multiforum litigation. It seeks to create an effective tool that can be used to reduce some of the artificial barriers that tradition has erected around the sovereign separateness of the many different court systems in this country. The fact of separate sovereignty must be recognized, however, and to this end consent of both transferring and receiving courts is required. Within the consent requirement, transfer from the court system of one sovereign to the court system of another can improve on present practices …

Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan

Articles

What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …

The War On Diversity, John W. Reed

Other Publications

Over the past decade or more there have been strong pressures to abolish the diversity jurisdiction of the federal courts. With the strong backing of the prestigious American Law Institute and many scholars, and with the support of the Chief Justice, Senator Kennedy, and others, specific proposals have been introduced in Congress, have been discussed at enormous length, and have passed one or the other House but not both. At the moment, therefore, we still have diversity jurisdiction, and it is safe to predict that abolition of diversity will not occur during the present session of Congress. Nevertheless, the long-term …

Citizen Access To Judicial Review Of Administrative Action In A Transnational And Federal Context, Eric Stein, Joseph Vining

Articles

In an international legal order dominated by states, the individual citizen is generally viewed as lacking international legal personality. It is true with little exception that an individual cannot appear in an international forum, political or judicial, to press his rights. Despite the dramatically increased emphasis upon international protection of basic human rights, individuals have been given access to international dispute-settlement machinery in only a few isolated instances within the United Nations system, and on a regional level pursuant to the European Convention on Human Rights. The Paris Treaty establishing the European Coal and Steel Community (ECSC) and the Rome …

Henry V. Mississippi And The Adequate State Ground: Proposals For A Revised Doctrine, Terrance Sandalow

Book Chapters

More than a century ago, the then former Justice Curtis reminded the Bar that "questions of jurisdiction were questions of power as between the United States and the several States." Accordingly, any expansion of the jurisdiction of federal courts is an occasion for alarm for those to whom the slogan of "state's rights" is a substitute for analysis. Justice Curtis was aware, however, that Scylla and Charybdis were both to be avoided. Failure to extend the jurisdiction of federal courts to appropriate cases may be as great a disservice to the federal system as an undue expansion of that jurisdiction. …

State Law Of Patent Exploitation, Edward H. Cooper

Articles

The main purpose of the present inquiry is to determine whether second thoughts support or undermine the instinctive supposition that the doctrines surrounding cooperative use of patents should be federal. The original creator of a patented invention is seldom in a position to exploit its commercial potential alone; even if the invention is created by the employee of a vast enterprise, it is almost inevitable that the patent will be assigned to his employer. Patent licensing plays a vitally important role in the development of many inventions. The contract doctrines surrounding such transactions, and various other consensual undertakings relating to …

Comment On Powell V. Mccormack, Terrance Sandalow

Articles

The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Articles

The plaintiff in a civil cause ordinarily is permitted to select the persons with whom he will litigate. The initial designation of parties to an action is made by the plaintiff, and if he chooses to sue B and not A,' that is ordinarily of no concern to B or to A or to the court. So also where the plaintiff without A as co-plaintiff sues B. Not always, however, is the plaintiff permitted unfettered choice in naming the parties to his lawsuit. On the one hand there are persons whose relationship to the situation in litigation is outside the …

International Law--Witholding Of Political Recognition--Suit By Russian Corporation In Court Of Equity, Edwin D. Dickinson

Articles

"The plaintiff corporation was incorporated in Russia under the Imperial government. Prior to the Russian Revolution it had deposited certain securities and moneys with the defendant, as trustee, as required by the New York statutes, for the protection of policy-holders and creditors. In this suit to compel the return of the funds the defendant claimed that the plaintiff corporation was no longer in existence because of the Russian Soviet decrees.... Held, that although the court cannot recognize the legal validity of the decrees of the Soviet government, the facts of the situation are such that justice and reason require …