Law Commons^™

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …

Patent Institutions: Shifting Interactions Between Legal Actors, Arti K. Rai

Faculty Scholarship

This contribution to the Research Handbook on Economics of Intellectual Property Rights (Vol. 1 Theory) addresses interactions between the principal legal institutions of the U.S. patent system. It considers legal, strategic, and normative perspectives on these interactions as they have evolved over the last 35 years. Early centralization of power by the U.S. Court of Appeals for the Federal Circuit, newly created in 1982, established a regime dominated by the appellate court's bright-line rules. More recently, aggressive Supreme Court and Congressional intervention have respectively reinvigorated patent law standards and led to significant devolution of power to inferior tribunals, including newly …

Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Faculty Scholarship

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.