Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Courts (12)
- Jurisdiction (11)
- Civil Procedure (7)
- Constitutional Law (5)
- Jurisprudence (4)
-
- State and Local Government Law (4)
- Bankruptcy Law (2)
- International Law (2)
- Internet Law (2)
- Litigation (2)
- Supreme Court of the United States (2)
- Administrative Law (1)
- Antitrust and Trade Regulation (1)
- Business Organizations Law (1)
- Communications Law (1)
- Computer Engineering (1)
- Conflict of Laws (1)
- Contracts (1)
- Criminal Law (1)
- Digital Communications and Networking (1)
- Dispute Resolution and Arbitration (1)
- Economics (1)
- Engineering (1)
- Environmental Law (1)
- Estates and Trusts (1)
- Fourteenth Amendment (1)
- Human Rights Law (1)
- Insurance Law (1)
- Judges (1)
- Institution
-
- Fordham Law School (4)
- University of Michigan Law School (4)
- Selected Works (3)
- SelectedWorks (3)
- Maurer School of Law: Indiana University (2)
-
- Pepperdine University (2)
- Seattle University School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- American University Washington College of Law (1)
- Boston University School of Law (1)
- Brigham Young University (1)
- Cleveland State University (1)
- Mississippi College School of Law (1)
- Notre Dame Law School (1)
- Penn State Law (1)
- Southern Methodist University (1)
- St. John's University School of Law (1)
- University at Buffalo School of Law (1)
- University of Cincinnati College of Law (1)
- University of Georgia School of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Pittsburgh School of Law (1)
- Vanderbilt University Law School (1)
- Publication Year
- Publication
-
- Fordham Law Review (3)
- Journal Articles (3)
- Articles (2)
- Michigan Law Review (2)
- Pepperdine Law Review (2)
-
- Scott Dodson (2)
- Seattle University Law Review (2)
- All Faculty Scholarship (1)
- Articles by Maurer Faculty (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Austen L. Parrish (1)
- Brigham Young University Prelaw Review (1)
- Cleveland State Law Review (1)
- Dustin Buehler (1)
- Faculty Journal Articles and Book Chapters (1)
- Faculty Scholarship (1)
- Fordham Urban Law Journal (1)
- Georgia Journal of International & Comparative Law (1)
- Gilbert Marcus Cole (1)
- Indiana Law Journal (1)
- Margaret Howard (1)
- Michigan Journal of International Law (1)
- Nevada Law Journal (1)
- Notre Dame Law Review (1)
- Scholarly Works (1)
- St. John's Law Review (1)
- University of Cincinnati Law Review (1)
- Vanderbilt Law Review (1)
- Publication Type
Articles 1 - 30 of 37
Full-Text Articles in Law
The New Comity Abstention, John Harland Giammatteo
The New Comity Abstention, John Harland Giammatteo
Journal Articles
In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.
This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …
Abstaining Equitably, Fred O. Smith Jr.
Abstaining Equitably, Fred O. Smith Jr.
Notre Dame Law Review
The doctrine of Younger abstention—which counsels federal courts not to interrupt ongoing state criminal proceedings—balances dueling considerations. On the one hand, the doctrine preserves federal courts’ ability to exercise Congressionally conferred, properly invoked jurisdiction to prevent irreparable violations of the federal constitution. On the other, the doctrine provides space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, federal courts can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication.
First, …
Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel
Acid Rain: Detoxifying Diversity Jurisdiction’S Poisonous Cycle, Baerett Nelson, Gavyn Roedel
Brigham Young University Prelaw Review
Diversity jurisdiction authorizes federal courts to act as impartial tribunals over certain matters of state law. To preserve states' judicial sovereignty, the US Supreme Court has prohibited diversity courts from directly interpreting state law, holding that federal courts must "predict" the legal outcome as if a state court had adjudicated. However, litigant abuse hinders consistency in legal outcomes. Discrepancies between courts spur forum shopping, which cyclically generates more legal incongruence. This paper identifies a "toxic cycle" plaguing diversity jurisdiction and offers five prescriptions which courts and Congress must use to reverse it.
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French
Journal Articles
Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …
The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon
The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon
University of Cincinnati Law Review
No abstract provided.
The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco
The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco
St. John's Law Review
(Excerpt)
Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, …
Jurisdiction And Its Effects, Scott Dodson
Jurisdiction And Its Effects, Scott Dodson
Scott Dodson
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
Articles
On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …
The Relevance Of Customary International Norms To The Death Penalty In The United States, Joan Fitzpatrick
The Relevance Of Customary International Norms To The Death Penalty In The United States, Joan Fitzpatrick
Georgia Journal of International & Comparative Law
No abstract provided.
Application Of The Abstention Doctrine To Inverse Condemnation Actions In Federal Court , John T. Harris
Application Of The Abstention Doctrine To Inverse Condemnation Actions In Federal Court , John T. Harris
Pepperdine Law Review
No abstract provided.
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Margaret Howard
No abstract provided.
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Pepperdine Law Review
No abstract provided.
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Faculty Scholarship
Jonathan Remy Nash's article, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, bravely tackles and creatively merges-the dual debates over rules versus standards and the ideal contours of federal jurisdiction.' He proposes a revised regime in which rules define jurisdictional boundaries at the front end, while standards "migrate" into a discretionary abstention phase at the back end.2 This realignment, Nash argues, optimizes efficiency and predictability by placing a bright-line rule at the jurisdictional threshold, while promoting federalism by establishing a safety net that applies standards to claims that cross the threshold. 3 In this …
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey
Scott Dodson
Jurisdiction, Abstention, And Finality: Articulating A Unique Role For The Rooker-Feldman Doctrine, Dustin Buehler
Jurisdiction, Abstention, And Finality: Articulating A Unique Role For The Rooker-Feldman Doctrine, Dustin Buehler
Dustin Buehler
Federal courts frequently confuse the Rooker-Feldman doctrine with Younger abstention and preclusion law, often using these doctrines interchangeably to dismiss actions that would interfere with state court proceedings. For years, scholars argued that the Supreme Court should alleviate this confusion by abolishing the Rooker-Feldman doctrine altogether. The Court recently refused to so, however. In Exxon Mobil Corp. v. Saudi Basic Industries Corp. and Lance v. Dennis, the Court reaffirmed Rooker-Feldman’s vitality, and held that the doctrine plays a unique role, completely separate from abstention and preclusion rules. And yet these decisions leave a key question unanswered: exactly how does Rooker-Feldman …
Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem In Bankruptcy, Gilbert Marcus Cole, Todd J. Zywicki
Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem In Bankruptcy, Gilbert Marcus Cole, Todd J. Zywicki
Gilbert Marcus Cole
The American bankruptcy system is a hybrid of state law and federal bankruptcy law. Under the Butner principle, federal bankruptcy courts preserve substantive non-bankruptcy law entitlements in bankruptcy unless bankruptcy policies compel a contrary result. This hybrid system, however, gives rise to the threat of forum-shopping if parties attempt to invoke bankruptcy jurisdiction for improper purposes, namely to rearrange non-bankruptcy entitlements to advance no coherent bankruptcy policy. Modern developments in bankruptcy law, as exemplified in the case of Marshall v. Marshall raise a novel threat of bankruptcy forum-shopping. Marshall involved the bankruptcy of tabloid starlet Anna Nicole Smith and her …
Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden
Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden
Faculty Journal Articles and Book Chapters
This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternatives in equal measure. Second, and relatedly, people assume that a voter’s preferred alternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter’s preferred alternative. These two assumptions guide the thinking …
Duplicative Foreign Litigation, Austen L. Parrish
Duplicative Foreign Litigation, Austen L. Parrish
Articles by Maurer Faculty
What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.
The federal courts, however, do not yet have a coherent response to the problem. They apply …
Duplicative Foreign Litigation, Austen L. Parrish
Duplicative Foreign Litigation, Austen L. Parrish
Austen L. Parrish
What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of an-other country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings – and the waste inherent in such duplication – becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents. The federal courts, however, do not yet have a coherent response to the problem. They apply …
Certifying Questions To Congress, Amanda Frost
Certifying Questions To Congress, Amanda Frost
Articles in Law Reviews & Other Academic Journals
As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts …
Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah Challener
Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah Challener
Journal Articles
This Article argues that a federal court does not abdicate its duty to exercise its jurisdiction when it certifies a question in a diversity case; instead, the court merely postpones the exercise of its jurisdiction. Thus, federal courts need not limit certification in diversity cases to exceptional circumstances.
The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman
The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman
Articles
Class action litigation seeks to mediate pressing conflicts between individual autonomy and collective justice; federal supervision and local control; self-interested class counsel and the represented class. These conflicts are exacerbated when a federal court that approves a class action settlement later seeks to enjoin state court litigants from violating its terms. Yet the demand for such injunctions has increased in light of the advent of back-end opt-out rights. In recent years, class members have been afforded back-end, or delayed, opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may …
Mandating Access To Telecom And The Internet: The Hidden Side Of Trinko, Daniel F. Spulber, Christopher S. Yoo
Mandating Access To Telecom And The Internet: The Hidden Side Of Trinko, Daniel F. Spulber, Christopher S. Yoo
All Faculty Scholarship
Antitrust has long played a major role in telecommunications policy, demonstrated most dramatically by the equal access mandate imposed during the breakup of AT&T. In this Article we explore the extent to which antitrust can continue to serve as a source of access mandates following the Supreme Court's 2004 Trinko decision. Although Trinko sharply criticized access remedies and antitrust courts' ability to enforce them, it is not yet clear whether future courts will interpret the opinion as barring all antitrust access claims. Even more importantly, the opinion contains language hinting at possible bases for differentiating among different types of access, …
A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic
A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic
Michigan Law Review
Ann-Marie Brege's parents established an irrevocable trust in 1985, with Ann-Marie as sole beneficiary. When Merrill Lynch Trust Co. took over as trustee years later, however, the trust's principal dropped sharply, losing over half its value in just a few years. Ann-Marie sued in Michigan probate court, alleging that Merrill Lynch had violated its legal duties in administering the trust. Since Ann-Marie was from New York and Merrill Lynch had its headquarters in New Jersey, Merrill Lynch had an apparently easy argument for diversity jurisdiction. In an unremarkable turn of events, Merrill Lynch filed a notice of removal to federal …
The Business Judgment Rule As Abstention Doctrine, Stephen M. Bainbridge
The Business Judgment Rule As Abstention Doctrine, Stephen M. Bainbridge
Vanderbilt Law Review
The business judgment rule is corporate law's central doctrine, pervasively affecting the roles of directors, officers, and controlling shareholders. Increasingly, moreover, versions of the business judgment rule are found in the law governing the other types of business organizations, ranging from such common forms as the general partnership to such unusual ones as the reciprocal insurance exchange. Yet, curiously, there is relatively little agreement as to either the theoretical underpinnings of or policy justification for the rule. This gap in our understanding has important doctrinal implications. As this paper demonstrates, a string of recent decisions by the Delaware supreme court …
Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers
Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers
Seattle University Law Review
This Article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA"). Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially …
The Ninth Circuit's Message To Nevada: You're Not Getting Any Younger, Kevin Beck
The Ninth Circuit's Message To Nevada: You're Not Getting Any Younger, Kevin Beck
Nevada Law Journal
No abstract provided.
Sorting Out Federal And State Judicial Roles In State Insitutional Reform: Abstention's Potential Role, Charles R. Wise, Robert K. Christensen
Sorting Out Federal And State Judicial Roles In State Insitutional Reform: Abstention's Potential Role, Charles R. Wise, Robert K. Christensen
Fordham Urban Law Journal
The U.S. Supreme Court has given federal courts the authority to abstain from hearing certain cases and defer to state courts in some cases where constitutional or federal statutory rights have been violated. This piece attempts to clarify the abstention requirements and provide a clear rationale for the doctrine. Part I of this piece discusses the origin and development of the abstention doctrine, focusing specifically on the Burford abstention, a kind of abstention particularly salient to institutional reform cases. Part I also illustrates the inconsistencies inherent in the application of the abstention doctrine in its current form. Parts II and …
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Citizen Suits Under The Resource Conservation And Recovery Act: Plotting Abstention On A Map Of Federalism, Charlotte Gibson
Michigan Law Review
In the shadow of the Supreme Court's constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA") exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen …
The Passive Virtues And The World Court: Pro-Dialogic Abstentation By The International Court Of Justice, Antonio F. Perez
The Passive Virtues And The World Court: Pro-Dialogic Abstentation By The International Court Of Justice, Antonio F. Perez
Michigan Journal of International Law
This article will describe how the World Court has abstained in a way that not only expresses its commitment to principled government but also implements a coordinate, participation-inducing agenda. The article argues that the most recent jurisprudence of the ICJ manifests an acceleration of this tendency in response not only to the need to conserve judicial resources in light of the increased use of the Court by States, but also, and more significantly, to the enhanced law-making activity of the political organs of the U.N.