Law Commons^™

Fragmenting The Judiciary: Potential Ideological Effects Of Shifting Implementation Of Supreme Court Doctrine From Federal Courts To State Courts, Ryan Walters

Ryan Walters

More than ever, the Supreme Court of the United States can rely on an army of life-tenured judges on lower federal courts to implement the doctrines it develops on statutory and constitutional issues. Those judges are shielded from public opinion on controversial rulings, and recent research has shown that the Supreme Court itself is more likely to be affected by elite opinion than that of the public.

Despite checks and balances being a centerpiece of the constitutional order, the increasing size and jurisdictional scope of the federal judiciary, combined with its lack of political accountability, has led to a increase …

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Pepperdine Law Review

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …

Sales Tax Exceptionalism, Andrew J. Haile

Andrew J. Haile

There is something different about the state sales tax, or so it seems based on judicial decisions creating unique jurisdictional and apportionment standards for the tax. This Article explores the concept of “sales tax exceptionalism,” and assesses whether the special treatment afforded to the sales tax is justified by the theoretical foundations of the tax. In particular, the Article examines whether theoretical justifications exist for the unique jurisdictional standard applied to the sales tax (a “physical presence” standard), as compared to the “economic presence” standard applied to the corporate income tax. Ultimately, the Article concludes that only weak theoretical justifications …

Civil Rule 54(B); Seventy-Five And Ready For Retirement, Andrew S. Pollis

Andrew S Pollis

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative. When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await …

Young Again, Larry Yackle

Larry Yackle

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The Supreme Court’s 1908 decision in Young is primarily remembered for its treatment of state sovereign immunity. Yet the plaintiffs’ right of action (their entitlement to sue) presented an independent issue that has long been debated in academic circles. That question is again on the agenda inasmuch as Young figures in the current controversy about whether private litigants may routinely press preemption claims in federal court without explicit authorization from Congress. Proponents contend that preemption suits are …

The (Too) Long Arm Of The S.E.C.: When A Foreign Employee Of A U.S.-Based Multinational Financial Services Client Is Threatened With A Subpoena, Jonathan R. Law

Jonathan R Law

As businesses and financial institutions engage in transactions with increasingly international scope, U.S. regulatory agencies follow closely behind, investigating potential violations of the securities and exchange laws. Of all the investigative powers of the Securities and Exchange Commission, one of the more feared is the ability to issue administrative subpoenas and have them enforced by a Federal court. What is troubling, however, is the SEC’s recent foray into investigating possible misconduct across U.S. borders through subpoenaing foreign employees conducting business overseas. This article argues that in certain circumstances, the SEC does not have the authority to issue or enforce an …

Adr’S Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Lee Kovarsky

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

Love, Loyalty And The Louisiana Civil Code: Rules, Standards And Hybrid Discretion In A Mixed Jurisdiction, John A. Lovett

Louisiana Law Review

No abstract provided.

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

No abstract provided.

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

College of Law - Faculty Scholarship

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

A Response To Harel And Porat: On The Inadmissibility Of The Aggregated Probabilities Principle, Doron Menashe Dr.

Mahdi Naamnee

This article is a response to an article by Alon Harel and Ariel Porat, recently published in the Michigan Law Review. In the article, the authors argue that, under certain conditions, courts should be permitted to convict a defendant in an unspecified offense. This possibility is meant to address situations in which there is no reasonable doubt that the defendant committed an offense, even though the prosecution failed to prove beyond reasonable doubt that the defendant committed any specific offense of which he was accused. The authors term this new decision principle as the Aggregated Probabilities Principle – APP.

In …

Viewing The "Same Case Or Controversy" Of Supplemental Jurisdiction Through The Lens Of The "Common Nucleus Of Operative Fact" Of Pendent Jurisdiction, Douglas D. Mcfarland

Douglas D. McFarland

When a federal court has jurisdiction of a claim, supplemental jurisdiction of § 1367(a) allows the court to adjudicate all parts “of the same case or controversy under Article III.” This article argues that the best way to interpret that phrase is by examining the meaning of “common nucleus of operative fact,” the test for its ancestor pendent jurisdiction. Through that lens, “same case or controversy” means the broad grouping of facts, without regard to legal theories or categories, that a lay person would expect to be tried together. And in limning the boundaries of that grouping of facts, the …

Protecting The Diversity Of The Depths: Environmental Regulation Of Bioprospecting And Marine Scientific Research Beyond National Jurisdiction, Robin M. Warner

Robin Warner

As scientific knowledge of marine areas beyond national jurisdiction increases and developments in oceans technology permit greater access to the high seas water column and the deep seabed, new and more intensive uses of these areas occur with consequential impacts on the marine environment. The discovery of hydrothermal vents in 1977 revealed communities of organisms with unique genetic and biochemical properties which can be used for a seemingly limitless catalogue of medical, pharmaceutical and industrial applications. Similar repositories of genetic and biochemical resources have been discovered in other deep sea environments such as cold water seeps and it is expected …

Preserving A Balanced Ocean: Regulating Climate Change Mitigation Activities In Marine Areas Beyond National Jurisdiction, Robin M. Warner

Robin Warner

The damaging effects of anthropogenically induced climate change on both the terrestrial and marine environments have been acknowledged by a succession of expert reports commissioned by global and national bodies. This recognition has spawned heightened levels of activity by scientists, engineers and entrepreneurs to mitigate the adverse effects of climate change. Multiple schemes have been suggested to ameliorate the adverse effects of climate change on the environment caused by the burning of fossil fuels and other greenhouse gas emissions including enhanced schemes to remove carbon dioxide from the atmosphere. The ability of the ocean to absorb rising levels of carbon …

The English Approach To Compétence-Compétence, Ozlem Susler Ms

OZLEM SUSLER MS

This article examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in the United Kingdom by considering the principle of compétence-compétence as provided for in its arbitration law. The term compétence-compétence – also referred to as compétence sur la competence or kompetenz-kompetenz – confers a right on arbitrators to decide their own jurisdictional authority to hear a dispute and is essential to the practice of international commercial arbitration.Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in the stage …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Rodger Citron

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

The Post-Iqbal State Of Pleading: An Argument Opposing A Uniform National Pleading Regime, Mark W. Payne

University of Miami Business Law Review

The U.S. Supreme Court's 2009 decision in Ashcroft v. Iqbal placed a squeeze on the once touted liberal Federal Rules of Civil Procedure by requiring judges to consider the veracity of potential plaintiffs' federal claims in light of Iqbal's new heightened pleading standard. This article examines post-Iqbal pleading standards across United States jurisdictions and argues that states should exert caution before choosing to adopt Iqbal's new "plausibility" standard, and if they elect to modify their pleading standards in light of the Iqbal decision, they should also carefully contemplate their method of adoption.

The Ftca V. The Tucker Act: When Is A Tort Claim In Substance A Breach Of Contract Claim For Jurisdictional Purposes?, Gregory Boulos

University of Miami Law Review

No abstract provided.

Class Actions Under Cafa And Parens Patriae Actions: West Virginia Ex Rel. Mcgraw V. Cvs Pharmacy, Inc., Marshall P. Walker

South Carolina Law Review

No abstract provided.

The Ferrini Doctrine: Abrogating State Immunity From Civil Suit For Jus Cogens Violations, Natasha Marusja Saputo

University of Miami National Security & Armed Conflict Law Review

Article 10 of the Italian Constitution incorporates generally recognized principles of international law. Thus, State immunity from civil suit in the domestic courts of another State——a principle generally recognized in international law——would apply in Italy. However, the protection of fundamental human rights is another generally recognized principle in international law and the ostensible conflict between these two principles has resulted in a series of controversial rulings issued by the Italian Court of Cassation. These rulings allow for the abrogation of State immunity from civil suit in the domestic courts of another State for alleged violations of jus cogens or peremptory …

An Inconvenient Forum: Altering The Doctrine Of Forum Non Conveniens For Human Rights Claims Under The Alien Tort Statute, Lynn Ta

Lynn Ta

This Article proposes a new approach to the doctrine of forum non conveniens. Traditionally, forum non conveniens has been considered a non-merits decision that does not require a prior determination of subject matter jurisdiction. This Article argues that this approach significantly disadvantages foreign plaintiffs who bring human rights claims under the Alien Tort Statute because it quickly and automatically dismisses such cases without considering either the U.S. interest in adjudicating human rights cases or the gravity of human rights violations. Both these considerations should trump the more mechanical analysis conducted under the traditional forum non conveniens model. The central thesis …

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …

Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk

Richard Faulk

Policymakers find themselves increasingly occupied with ATS claims arising from conduct that occurred in other countries and which has no significant connection to the United States — claims that may not be consistent with our own government’s policies for promoting human rights. Although this issue of “extraterritorial” application has been inherent in every ATS case that has involved injuries caused by foreign corporations outside the United States, it has evaded review in every instance, and — until the Supreme Court heard arguments recently in Kiobel v. Royal Dutch Petroleum — it appeared that the proliferation of ATS cases in that …

Traveling To The Hague In A Worn-Out Shoe, Friedrich K. Juenger

Pepperdine Law Review

No abstract provided.

Adopting Regulatory Objectives For The Legal Profession, Laurel Terry

Faculty Scholarly Works

No abstract provided.

A New Paradigm For The Alien Tort Statute Under Extraterritoriality And The Universality Principle, Jason Jarvis

Pepperdine Law Review

No abstract provided.