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Full-Text Articles in Law
Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset
Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset
Journal Articles
The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.
This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan
Faculty Works
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …
State Courts And The Making Of Federal Common Law, Anthony J. Bellia
State Courts And The Making Of Federal Common Law, Anthony J. Bellia
Journal Articles
The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain …
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss
Faculty Scholarship
Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …
Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser
Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser
Publications
Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference …
Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi
Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi
Publications
No abstract provided.
Jury -- Determination Of Damages By Appellate Court As Denial Of Right To Trial By Jury Given By Federal Law, William Burnett Harvey
Jury -- Determination Of Damages By Appellate Court As Denial Of Right To Trial By Jury Given By Federal Law, William Burnett Harvey
Articles by Maurer Faculty
No abstract provided.