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Full-Text Articles in Law
Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins
Faculty Publications
No abstract provided.
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
Faculty Publications
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …
The Twin Aims Of Erie, Michael S. Green
The Twin Aims Of Erie, Michael S. Green
Faculty Publications
We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid 'forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. …
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
Faculty Publications
No abstract provided.
Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer
Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer
Faculty Publications
No abstract provided.
Burying The “Continuing Body” Theory Of The Senate, Aaron-Andrew P. Bruhl
Burying The “Continuing Body” Theory Of The Senate, Aaron-Andrew P. Bruhl
Faculty Publications
In the U.S. Senate, only one-third of the members stand for election every two years; the rest carry over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing-body idea is invoked to defend highly controversial aspects of Senate practice. By far the …
Presidential Unilateralism And Political Polarization: Why Today's Congress Lacks The Will And The Way To Stop Presidential Initiatives, Neal Devins
Faculty Publications
No abstract provided.
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.
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Faculty Publications
No abstract provided.
Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins
Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins
Faculty Publications
No abstract provided.
Abdication By Another Name: An Ode To Lou Fisher, Neal Devins
Abdication By Another Name: An Ode To Lou Fisher, Neal Devins
Faculty Publications
No abstract provided.
The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg
The Non-Impact Of The United States Supreme Court Regulatory Takings Cases On The State Courts: Does The Supreme Court Really Matter?, Ronald H. Rosenberg
Faculty Publications
No abstract provided.
Congress, The Fcc, And The Search For The Public Trustee, Neal Devins
Congress, The Fcc, And The Search For The Public Trustee, Neal Devins
Faculty Publications
No abstract provided.
The Employer's Fetal Injury Quandary After Johnson Controls, Susan Grover
The Employer's Fetal Injury Quandary After Johnson Controls, Susan Grover
Faculty Publications
No abstract provided.
A Proposal To Resolve Interbranch Disputes On The Practice Field, Paul R. Verkuil
A Proposal To Resolve Interbranch Disputes On The Practice Field, Paul R. Verkuil
Faculty Publications
No abstract provided.
Cooperative Failure: An Analysis Of Intergovernmental Relationships And The Problem Of Air Quality Non-Attainment, Ronald H. Rosenberg
Cooperative Failure: An Analysis Of Intergovernmental Relationships And The Problem Of Air Quality Non-Attainment, Ronald H. Rosenberg
Faculty Publications
No abstract provided.
Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William W. Van Alstyne
Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William W. Van Alstyne
Faculty Publications
Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note. The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the Amerian Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, …
The Second Death Of Federalism, William W. Van Alstyne
The Second Death Of Federalism, William W. Van Alstyne
Faculty Publications
In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.