Law Commons^™

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

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Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

The Stockley Verdict: An Explainer, Chad Flanders

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The purpose o f this document is to help explain some o f the existing Missouri law that Judge Wilson used in his opinion. It does not take a side on the opinion itself. At the end o f the day, the decision Judge Wilson made was based on his call on various disputed factual questions. The law was not, for the most part, at issue. I attempt only to describe the legal framework within with Judge Wilson decided the case; not to support or to criticize his verdict. Each person will ultimately have to make his or her own …

Private Litigation In A Public Law Sphere:The Standard Of Review In Investor-State Arbitrations, William W. Burke-White, Andreas Von Staden

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International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question …

Guest Editors’ Introduction To Special Issue On Substance Abuse And Addiction In Family Courts, Barbara A. Babb, Gloria Danziger, Judith D. Moran

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No abstract provided.

Intention, Torture, And The Concept Of State Crime, Aditi Bagchi

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Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, …

Power, Protocol And Practicality: Communications From The District Court During An Appeal, Catherine T. Struve

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No abstract provided.

Time Out, Stephen B. Burbank

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No abstract provided.

Norm Change Or Judicial Decree? The Courts, The Public, And Welfare Reform, Amy L. Wax

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No abstract provided.

Symposium: Supreme Court Review, Symposium Foreword, Mitchell N. Berman

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No abstract provided.

Originalism Is Bunk, Mitchell N. Berman

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No abstract provided.

How To Prevent Hard Cases From Making Bad Law: Bear Stearns, Delaware And The Strategic Use Of Comity, Marcel Kahan, Edward B. Rock

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The Bear Stearns/JP Morgan Chase merger placed Delaware between a rock and a hard place. On the one hand, the deal’s unprecedented deal protection measures – especially the 39.5% share exchange agreement – were probably invalid under current Delaware doctrine because they rendered the Bear Stearns shareholders’ approval rights entirely illusory. On the other hand, if a Delaware court were to enjoin a deal pushed by the Federal Reserve and the Treasury and arguably necessary to prevent a collapse of the international financial system, it would invite just the sort of federal intervention that would undermine Delaware’s role as the …

Ruth Bader Ginsburg And Sensible Pragmatism In Federal Jurisdictional Policy, Tobias Barrington Wolff

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This article, written as part of a symposium celebrating the work of Justice Ruth Bader Ginsburg on the occasion of her fifteenth year on the Supreme Court, examines the strain of sensible legal pragmatism that informs Justice Ginsburg's writing in the fields of Civil Procedure and Federal Jurisdiction. Taking as its point of departure the Supreme Court's decision in City of Chicago v. International College of Surgeons, in which Ginsburg dissented, the article develops an argument against strict textualism in federal jurisdictional analysis. In its place, the article urges a purposive mode of interpretation that approaches jurisdictional text with a …

Shareholders In The Jury Box: A Populist Check Against Corporate Mismanagement, Ann M. Scarlett

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The recent subprime mortgage disaster exposed corporate officers and directors who mismanaged their corporations, failed to exercise proper oversight, and acted in their self-interest. Two previous waves of corporate scandals in this decade revealed similar misconduct. After the initial scandals, Congress and the Securities and Exchange Commission attempted to prevent the next crisis in corporate governance through legislative and regulatory actions such as the Sarbanes-Oxley Act of 2002. Those attempts failed. Shareholder derivative litigation has also failed because judges accord corporate executives great deference and thus rarely impose liability for breaches of fiduciary duties.

To prevent the next crisis in …

Labor Injunctions In Bankruptcy: The Norris-Laguardia Firewall, Michael C. Duff

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This article considers whether federal courts, including bankruptcy courts, are authorized to issue injunctions in connection with various kinds of labor disputes arising after the filing of a petition in bankruptcy. The question takes on renewed importance in light of the record number of Chapter 11 bankruptcy filings in 2008, including filings by two of the three major American automakers, which are unionized. Given the increasing complexity of some of these notorious reorganizations, the likelihood of post-petition labor disputes appears to have correspondingly increased. In agreement with the few federal circuits that have considered the question, the article concludes that, …

Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan

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As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive answer …

A Review Of “How Judges Think” By Richard A Posner, Chad Flanders

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This is a short review of How Judges Think by Richard Posner.

Why Law Students Should Take The Federal Courts Course, Roger L. Goldman

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The most unique feature of the American judiciary is its dual system of trial courts, one state and one federal. This article explores the reasons traditionally given for the need for lower federal courts and whether, in practice, the federal courts are actually serving those needs. For example, it has been assumed that state courts are less hospitable to federal civil rights and consumer claims than federal courts, yet in many jurisdictions, plaintiffs’ lawyers prefer filing claims in state courts under state anti-discrimination or consumer laws rather than federal laws to prevent removal of the case to federal court. The …

Straw, Sand, And Sophistry, Stephen B. Burbank

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No abstract provided.