Law Commons^™

Our Equity: Federalism And Chancery, Jeffrey Steven Gordon

University of Miami Law Review

Federal courts sitting in diversity cannot agree on whether state or federal law governs the award of a preliminary injunction. The conditions for the exercise of a federal diversity court’s extraordinary remedial power are anybody’s guess. The immediate cause of the confusion is Justice Frankfurter’s cryptic opinion in Guaranty Trust Co. v. York, which aggressively enforced Erie and, at the same time, preserved the so-called “equitable remedial rights” doctrine. There are, however, much broader and deeper causes that explain why the equitable remedial rights doctrine is almost incomprehensible today.

This Article argues that the early history of equity in …

Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin

Michigan Journal of Environmental & Administrative Law

Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on …

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …

The Collateral Order Doctrine In Disorder: Redefining Finality, Matthew R. Pikor

Chicago-Kent Law Review

No abstract provided.

Emerging From Daimler's Shadow: Registration Statutes As A Means To General Jurisdiction Over Foreign Corporations, Nicholas D'Angelo

St. John's Law Review

(Excerpt)

This Note argues for the increased exercise of general jurisdiction based on registration statutes. Carefully drafted state statutes, explicitly stating that corporations registering to do business in a state thereby consent to general jurisdiction, not only solve the consequences of Daimler, but also fully comport with traditional values of fairness.

Part I outlines the jurisprudential history related to general jurisdiction. Section A begins with the concept of territoriality introduced in Pennoyer and the minimum contacts analysis in International Shoe, then discusses the modern doctrine in Perkins, Helicopteros, and Goodyear, culminating with Daimler. Section …

The Constitutional Right To Collateral Post-Conviction Review, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post- conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the …

Courts And Executives, Jeffrey L. Yates, Scott S. Boddery

Political Science Faculty Publications

William Howard Taft was both our twenty-seventh president and the tenth Chief Justice of the U.S. Supreme Court -- the only person to have ever held both high positions in our country. He once famously commented that "presidents may come and go, but the Supreme Court goes on forever" (Pringle 1998). His remark reminds us that presidents serve only four-year terms (and are now limited to two of them), but justices of the Supreme court are appointed for life and leave a legacy of precedent-setting cases after departing the High Court. Of course, presidents also leave a legacy of important …

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Christopher B. Seaman

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive …

Adverse Interests And Article Iii, Ann Woolhandler

Northwestern University Law Review

In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk’s examples of non-contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, …

Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin

Articles

It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution, and …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Vanderbilt Law Review

U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other federal courts is best viewed as neither top-down nor bottom-up, but …

Attaching Domestic Assets To Remedy High Seas Pollution: Rule B And Marine Debris, Jonathan M. Gutoff

Law Faculty Scholarship

No abstract provided.

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Scholarly Articles

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.

This Article represents the first …

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …

Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker

Michigan Law Review Online

For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …

Toward A Federal Jurisprudence Of Trade Secret Law, Sharon Sandeen, Christopher B. Seaman

Faculty Scholarship

The May 2016 enactment of the Defend Trade Secrets Act of 2016 (DTSA), which created a new federal civil cause of action for trade secret misappropriation, raises a host of issues that federal courts will have to consider under their original subject matter jurisdiction, rather than applying state law through the courts’ diversity jurisdiction. This means that for the first time, an extensive body of federal jurisprudence will be developed to govern the civil protection and enforcement of trade secrets in the United States. In addition, due to the DTSA’s changes to the existing federal criminal law governing trade secrets, …

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

Articles in Law Reviews & Other Academic Journals

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie Jr.

College of Law Faculty Publications

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts. Commentators have long recognized that neither the Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to …

Unequal Opportunities: Education Pathways To The U.S. Judiciary, Alfred C. Aman

Articles by Maurer Faculty

This paper is about diversity in federal and state courts in the United States. My main argument is that we should promote a judiciary that is reflective of the society of which it is a part for three reasons: first, because in doing so, we gain critical awareness of barriers to judicial service; second, because in doing so, we are also promoting access to resources, education and opportunities in the legal profession; and third, because it is possible (although not automatic) that a reflective judiciary will broaden the range of experience and perspective on the matters involved in the cases …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor …