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Full-Text Articles in Law
There Is No Such Thing As Circuit Law, Thomas B. Bennett
There Is No Such Thing As Circuit Law, Thomas B. Bennett
Faculty Publications
Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders.
This article argues that the notion of circuit law is nonsensical and undesirable …
State Rejection Of Federal Law, Thomas B. Bennett
State Rejection Of Federal Law, Thomas B. Bennett
Faculty Publications
Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …
Limits Of Procedural Choice Of Law, S. I. Strong
Limits Of Procedural Choice Of Law, S. I. Strong
Faculty Publications
Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.
Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …
Preferences Are Public Rights, Brook E. Gotberg
Preferences Are Public Rights, Brook E. Gotberg
Faculty Publications
In the wake of the Supreme Court’s decision in Stern v. Marshall, there is widespread uncertainty as to what other proceedings may constitutionally fall within a bankruptcy court’s core jurisdiction. Supreme Court jurisprudence has been cryptic regarding the constitutional limitations of non-Article III courts, but the Court has identified a "public rights exception" to the general rule that the judicial power must be exercised only by judges with life tenure and salary protection. This public rights exception has not yet been explicitly extended to a bankruptcy proceeding, but the reasoning of the Court strongly suggests that a trustee’s motion to …
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong
Faculty Publications
This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong
Faculty Publications
This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …
Back To The Drawing Board: Reexamining Accepted Criteria For Regional Structure Of The Courts Of Appeals, Martha Dragich
Back To The Drawing Board: Reexamining Accepted Criteria For Regional Structure Of The Courts Of Appeals, Martha Dragich
Faculty Publications
This article aims to determine which of the accepted structural features of the courts of appeals are essential by demonstrating that the federal courts are designed to assure the supremacy and uniformity of federal law, and that regional organization was intended to foster, not to negate, uniformity.
The Constitutionalization Of Law In The United States, William B. Fisch, Richard S. Kay
The Constitutionalization Of Law In The United States, William B. Fisch, Richard S. Kay
Faculty Publications
The constitution is that the federal courts and a majority of state court systems will only entertain a constitutional claim in the context of a concrete dispute involving adversary parties with a specific stake in the outcome, and abstract review in these systems is unknown.
Once A Century: Time For A Structural Overhaul Of The Federal Courts, Martha Dragich
Once A Century: Time For A Structural Overhaul Of The Federal Courts, Martha Dragich
Faculty Publications
In this Article, I describe a structure capable of accommodating growing caseloads in a manner consistent with basic values of appellate justice. Before doing so, I sketch in Part I the structural evolution of the federal courts. Part II describes the current pressures on the courts of appeals, while Part III examines the effects of internal reforms on the quality of appellate justice and the development of a coherent body of national law. Next, in Part IV, I posit requirements for the federal courts' third century. Part V reviews major proposals to address the caseload crisis in the courts of …
Will The Federal Courts Of Appeals Perish If They Publish? Or Does The Declining Use Of Opinions To Explain And Justify Judicial Decisions Pose A Greater Threat?, Martha Dragich
Faculty Publications
This Article examines three of those practices: selective publication, summary disposition, and vacatur upon settlement.