Law Commons^™

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Rethinking Fairness: Principled Legal Realism And Federal Jurisdiction, Aviam Soifer

NYLS Law Review

No abstract provided.

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

NYLS Law Review

No abstract provided.

The Presence Of A Web Site As A Constitutionally Permissible Basis For Personal Jurisdiction, Christine E. Mayewski

Indiana Law Journal

No abstract provided.

Brown V. State Of New York: Judge Simons Says New York State Can Be Held Liable For Money Damages, Eric J. Stockel

Touro Law Review

No abstract provided.

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Supplemental Jurisdiction Over Claims By Plaintiffs In Diversity Cases: Making Sense Of 28 U.S.C. § 1367 (B), Darren J. Gold

Michigan Law Review

This Note examines the language and legislative history of section 1367(b) and proposes a uniform test for determining the circumstances in which subsection (b) authorizes the exercise of supplemental jurisdiction. Part I of this Note explains the doctrines of pendent and ancillary jurisdiction and examines how the Supreme Court's decision in Finley v. United States called these doctrines into question. Part II examines the language and legislative history of section 1367 and concludes that the statute only prohibits the exercise of supplemental jurisdiction over claims by plaintiffs in diversity cases when doing so would permit plaintiffs to circumvent the complete …

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …

Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo

Michigan Journal of International Law

This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …

Citizen's Arrests And The Fourth Amendment--A Fresh Perspective, Howard E. Wallin

Touro Law Review

No abstract provided.

The National Park System And Development On Private Lands: Opportunities And Tools To Protect Park Resources, Michael Mantell

External Development Affecting the National Parks: Preserving "The Best Idea We Ever Had" (September 14-16)

34 pages.

Contains footnotes.

Jurisdictional Limitations On Intangible Property In Eminent Domain: Focus On The Indianapolis Colts, Ellen Z. Mufson

Indiana Law Journal

No abstract provided.

Withdrawing Jurisdiction From Federal Courts, Charles E. Rice

Journal Articles

Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …

After "Life For Erie--A Reply, Peter Westen

Michigan Law Review

Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.

Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish

Michigan Law Review

Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …

Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman

Michigan Law Review

This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …

Proposed Citizens Right To Standing Act-Finding The Keys To Unlock The Courthouse Doors, Harold W. Wood, Jr.

Seattle University Law Review

Recent Supreme Court decisions severely restrict the right of citizens to litigate in federal courts. The Court's standing requirements not only limit the ability of citizens to successfully invoke federal court jurisdiction, but also confuse lower courts and litigants attempting to apply the requirements. Standing requirements have met with increasing criticism. And Congress is now considering legislative modification of standing doctrine. Unfortunately, the Court's employment of constitutional foundations in establishing current standing requirements imposes substantial roadblocks Congress must avoid to enact remedial standing legislation. This comment examines the constitutional and pragmatic difficulties of statutory modification of standing requirements and recommends …

Adjudication Of Federal Causes Of Action In State Court, Martin H. Redish, John E. Muench

Michigan Law Review

The first section of this article considers the power of state courts to hear federal cases. Since it is now well established that state courts have the constitutional power to adjudicate federal causes of action if Congress so desires, the significant questions concern the method by which the judiciary is to decipher congressional intent. Although the courts have no difficulty where Congress has explicitly addressed the issue of state court jurisdiction, problems do arise in situations where Congress has remained silent on the question. The first section critically examines the traditional criteria employed by the courts for determining congressional intent …

Comment On Powell V. Mccormack, Terrance Sandalow

Articles

The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …

Historical Bases Of Federal Judicial System, John P. Frank

Indiana Law Journal

No abstract provided.

Divorce Problems In The Conflict Of Laws, Herbert F. Goodrich

Articles

Divorce may be considered as the termination of the legal relationship between husband and wife by an act of the law. With the purely local aspect of legal questions regarding divorce, Conflict of Laws is not concerned. If a husband and wife are married and have their home in one state, legal questions concerning their divorce are local matters only. These will include the grounds for divorce, the particular court in which the action is brought, the procedure to be followed from commencement to termination of the action. In such a case it is only when some question concerning the …

Full Faith And Credit And Jurisdiction, Willard T. Barbour

Articles

The judgment of a sister state, when assailed by collateral attack, is often said to occupy a position intermediate between foreign and domestic judgments. Though the older American cases were inclined to examine into the merits of any foreign judgment, the present tendency is toward the adoption of the English view according to which a foreign judgment may be attacked collaterally only for want of jurisdiction or fraud. Dicey, Conflict of Laws (ed. 2) Ch. XVII; see note to Tremblay v. Aetna Life Insurance Co., 97 Me. 547, in 94 Am. St. Rep. 521, 538. But whereas any statement of …

A Treatise On The Constitutional Limitations Which Rest Upon The Legislative Power Of The States Of The American Union, Thomas M. Cooley, Victor H. Lane

Books

“At the request of the late Judge Cooley I have undertaken the preparation of this edition of the Constitutional Limitations. It seemed desirable, in view of all the circumstances, that the text of the last edition should stand as the text for this, and the work of the present editor has been confined to the bringing of the book down to date, by the addition of such matter to the notes as will fairly present the development of this branch of the law since the publication of the last edition.” --Preface to the Seventh Edition, Victor H. Lane, Ann Arbor, …

The Element Of Locality In The Law Of Criminal Jurisdiction, Henry W. Rogers

Articles

THE Federal Courts have no common law criminal jurisdiction. The question was raised in the United States Circuit Court for the District of Pennsylvania, in 1798, in United States v. Worrall, 2 Dallas, 384, and the Court was equally divided in opinion. Iii 1818, Mr. Justice STORY, in United States v. Coolidge, 1 Gallison, 488, decided that there were common law offences against the United States. But this, as we shall see, was overruled by the Supreme Court. As early as 1807, Chief Justice MARSHALL, in Ex parte .Bollman, 4 Cranch, 75, had said, "This Court disclaims all jurisdiction not …

A Treatise On The Constitutional Limitations Which Rest Upon The Legislative Power Of The States Of The American Union, Thomas M. Cooley

Books

In the Preface to the first edition of this work. the author stated its purpose to be, to furnish to the practitioner and the student of the law such a presentation of elementary constitutional principles as should serve, with the aid of its references to judicial decisions, legal treatises, and historical events, as a convenient guide in the examination of questions respecting the constitutional limitations which rest upon the power of the several State legislatures. …

Preface to the 4th Edition: "New topics in State Constitutional Law are not numerous; but such as are suggested by recent decisions have been …