Law Commons^™

State Securities Enforcement, Andrew K. Jennings

Faculty Articles

Each year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages—detection granularity and institutional decentralization—that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the nation’s residual securities enforcers, …

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

State Standing For Nationwide Injunctions Against The Federal Government, Jonathan R. Nash

Faculty Articles

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do …

#Personaljurisdiction: A New Age Of Internet Contacts, Zoe Niesel

Faculty Articles

No abstract provided.

Ip Litigation In U.S. District Courts: 1994-2014, Matthew Sag

Faculty Articles

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Daimler And The Jurisdictional Triskelion, Zoe Niesel

Faculty Articles

No abstract provided.

The Jurisdiction Of The D.C. Circuit, Matthew B. Lawrence, Eric M. Fraser, David Kessler, Stephen A. Calhoun

Faculty Articles

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …

Joint Reform?: The Interplay Of State, Federal, And Hemispheric Regulation Of Recreational Marijuana And The Failed War On Drugs, Steven W. Bender

Faculty Articles

In 2012, Washington and Colorado voters surprised the nation by authorizing the recreational use of marijuana. The outcome sent state regulators scrambling to implement the directive and supply a product source, while the federal government faced its own dilemma of whether to tolerate or squelch these state initiatives contradicting longstanding federal law. Surely the Mexican drug cartels (and other illicit growers and suppliers from Canada and within the United States) weighed the prospect for wider reform and its consequences for their multi-billion dollar industry. Although few of these uncertainties have been resolved with any clarity at the time of this …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Articles

Thus, this Article aims to provide newcomers to and infrequent users of international commercial arbitration with a brief introduction to the relationship between international arbitral proceedings and U.S. federal courts. Limitations of space mean that a great deal has necessarily been left out of this discussion. For example, this Article does not describe processes internal to the arbitration, in­stead focusing solely on the interaction between tribunal, parties and court. Fur­thermore, the text often skips over basic propositions of U.S. law that are well­-established in the domestic realm so as to concentrate more heavily on elements that are unique to international …

A Non-Fatal Collision: Interpreting Rluipa Where Religious Land Uses And Community Interests Meet, Adam J. Macleod

Faculty Articles

Imagine a large church located in a multi-family residential zoning district, where commercial uses are not permitted and religious uses are permitted by special use permit. The church applies for a special use permit to open a coffee shop, which would operate throughout the week during normal business hours and would supplement and support the church's other ministries. At the hearing on the permit application, many neighbors object. They fear increased traffic, visual blight, and safety hazards for their children. The city denies the permit. The church files an action against the city, alleging that the city has substantially burdened …

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 …

Close Enough For Government Work: What Happens When Congress Doesn't Do Its Job, Thomas C. Arthur, Richard Freer

Faculty Articles

There's the beef. The supplemental jurisdiction statute, particularly section 1367(b), is a nightmare of draftsmanship. The problems that flow from that fact are more than aesthetic. The sloppiness makes easy cases hard and sows confusion in areas where there should be, and so easily could have been, clarity. It creates that most wasteful type of litigation - fights over jurisdiction. Subject matter jurisdiction rules ought to be clear and capable of near-mechanical application whenever possible. Such pre­cision was possible in the supplemental jurisdiction, if only someone had spent as much time writing the statute as the trio has spent writing …

Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer

Faculty Articles

It has been a tough couple of years for supplemental jurisdiction. In recent decades, the doctrine, which earlier had been called the "child of necessity and sire of confusion," had become somewhat less confusing. The Supreme Court created a flurry of concern over the future of the doctrine with a pair of restrictive decisions in the late 1970s, but showed no further interest; the lower courts generally interpreted those holdings narrowly. With exceptions in a couple of areas, the application of supple­mental jurisdiction in the various joinder situations became relatively clear and predictable, and the doctrine played a major role …

Grasping At Burnt Straws: The Disaster Of The Supplemental Jurisdiction Statute, Thomas C. Arthur, Richard Freer

Faculty Articles

Ah, the strawman model! Where would Professors Rowe, Burbank, and Mengler be without it? At a minimum, they would have a much shorter article. If Professor Freer in fact torched the entire farm, it is because there was so much dry straw lying around after the three drafters fin­ished tilting with the strawmen they created in their response to Professor Freer's article. The drafters spend more than half of their article arguing the irrelevant points that a statute was needed after Finley, that the stat­ute was consistent with recommendations of the Federal Courts Study Committee, and that Professor Freer …

Acquiring In Personam Jurisdiction In Federal Question Cases: Procedural Frustration Under Federal Rule Of Civil Procedure 4, Marilyn Berger

Faculty Articles

With the adoption of the Federal Rules of Civil Procedure in 1938, Congress finally attempted to provide a uniform standard for exercising personal jurisdiction in federal courts. Despite that attempt, there is currently no uniform method for acquiring personal jurisdiction in federal question cases. A contributing factor to the lack of uniformity is Federal Rule of Civil Procedure 4. This article calls for a uniform personal jurisdiction standard in federal question cases. In so doing, it examines the three ways to acquire personal jurisdiction under Rule 4 and evaluates the adequacy of each method. Because some federal courts rely on …