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Articles 1 - 14 of 14

Full-Text Articles in Law

Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco Nov 2013

Congressional Control Over Federal Court Jurisdiction: A Defense Of The Traditional View, Julian Velasco

Julian Velasco

The extent of Congress's authority to control the jurisdiction of the federal courts has been the subject of unending academic debate. The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction. There has been no shortage, however, of commentators who have taken exception to that view. The heart of the debate lies in whether Congress is authorized to remove specific subjects from the jurisdiction of federal courts when motivated by hostility to their substantive decisions. According to the traditional view, Congress is free to use its power in this manner. While most traditionalists …


The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark Oct 2013

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …


The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark Oct 2013

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …


The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr. Oct 2013

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Anthony J. Bellia

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …


The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia Oct 2013

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia

Anthony J. Bellia

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …


Interagency Litigation And Article Iii, Joseph Mead Jul 2013

Interagency Litigation And Article Iii, Joseph Mead

All Maxine Goodman Levin School of Urban Affairs Publications

Agencies of the United States often find themselves on opposite sides of the "v." in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III's case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III's requirement of adverse parties in general, or the justiciability of intrabranch litigation in particular. Looking …


Resolving The Alj Quandary, Kent Barnett Apr 2013

Resolving The Alj Quandary, Kent Barnett

Vanderbilt Law Review

Federal administrative law judges ("ALJs") understand Euripides's irony all too well. They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges. ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA"). Indeed, they outnumber Article III judges and decide more than two hundred and fifty thousand cases each year. But they lack the defining characteristics of Article III deities.

Article III judges are installed under the Appointments Clause, enjoy …


Article Iii: Cases & Controversies - Teaching The Already V. Nike Case, Corey A. Ciocchetti Jan 2013

Article Iii: Cases & Controversies - Teaching The Already V. Nike Case, Corey A. Ciocchetti

Corey A Ciocchetti

Nike is the market leader selling athletic shoes worldwide. Already markets its products to a smaller segment of the athletic shoe market. These two companies battled at the intersection of the intellectual property, federal court jurisdiction and constitutional law. These slides help teach the Already v. Nike Supreme Court case. These slides cover issues such as Article III cases & controversies, intellectual property rights in trademarks and patents as well as mootness and standing doctrines.


A Constitutional Theory Of Habeas Power, Lee B. Kovarsky Jan 2013

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Faculty Scholarship

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly minted principle that the federal Constitution guarantees some …


Interagency Litigation And Article Iii, Joseph W. Mead Jan 2013

Interagency Litigation And Article Iii, Joseph W. Mead

Georgia Law Review

Agencies of the United States often find themselves on
opposite sides of the "v. " in disputes ranging from alleged
unfair labor practices in federal agencies, to competing
statutory interpretations, to run-of-the mill squabbles over
money. Yet Article III's case-or-controversy requirement

includes--at a minimum-adverse parties and standing.
Courts have disagreed with one another over the extent to
which litigation between the sovereign and itself meets
Article III standards. Despite the volume of scholarship
on Article III standing, relatively little attention has been
paid to Article III's requirement of adverse parties in
general, or the justiciability of intrabranch litigation in
particular. …


How Congress Could Defend Doma In Court (And Why The Blag Cannot), Matthew I. Hall Jan 2013

How Congress Could Defend Doma In Court (And Why The Blag Cannot), Matthew I. Hall

Scholarly Works

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the …


Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave Jan 2013

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.


General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr. Jan 2013

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …


A Constitutional Theory Of Habeas Power, Lee B. Kovarsky Dec 2012

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Lee Kovarsky

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ - they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly-minted principle that the federal Constitution guarantees …