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Articles 1 - 21 of 21
Full-Text Articles in Law
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
Faculty Scholarship
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.
This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …
In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher
In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher
Faculty Scholarship
A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. …
Federal Courts' Supervisory Authority In Federal Criminal Cases: The Warren Court Revolution That Might Have Been, Bruce A. Green
Federal Courts' Supervisory Authority In Federal Criminal Cases: The Warren Court Revolution That Might Have Been, Bruce A. Green
Faculty Scholarship
No abstract provided.
Are Damages Different? Bivens And National Security, Andrew Kent
Are Damages Different? Bivens And National Security, Andrew Kent
Faculty Scholarship
Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Faculty Scholarship
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns
Freedom, Finality, And Federal Preemption: Seeking Expanded Judicial Review Of Arbitration Awards Under State Law After Hall Street, Brian T. Burns
Fordham Law Review
When the U.S. Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc. in March 2008, the Court held that under the Federal Arbitration Act (FAA), parties to an arbitration agreement may not contractually expand the grounds for judicial review of an arbitration award beyond the grounds enumerated in the FAA. In dicta, however, the Court expressly left open the possibility that parties nonetheless may obtain expanded review by relying on state arbitration law, rather than the FAA. This Note examines the availability of contractually expanded review under state law and addresses the question of whether, in light of Hall …
Securities Class Actions, Cafa And A Countrywide Crisis: A Call For Clarity And Consistency, Denise Mazzeo
Securities Class Actions, Cafa And A Countrywide Crisis: A Call For Clarity And Consistency, Denise Mazzeo
Fordham Law Review
The unfolding of the credit crisis raises novel issues in securities litigation. This Note explores the conflict between the nonremoval provision of the Securities Act of 1933 (’33 Act) and the removal provisions of the Class Action Fairness Act of 2005 (CAFA), and their interplay in the context of class actions involving mortgage-backed securities. Circuits are currently split over whether or not such class actions are removable under CAFA. The Seventh Circuit and the Southern District of New York have held that class actions asserting only ’33 Act claims are removable under CAFA unless they fall within one of CAFA’s …
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Faculty Scholarship
Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …
Managing Electronic Discovery: Views From The Judges, Lee H. Rosenthal, James C. Francis, Daniel J. Capra
Managing Electronic Discovery: Views From The Judges, Lee H. Rosenthal, James C. Francis, Daniel J. Capra
Fordham Law Review
No abstract provided.
Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell
Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell
Fordham Law Review
No abstract provided.
How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar
How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar
Fordham Urban Law Journal
This essay addresses the unresolved effects of preliminary injunctions issued by federal district courts in response to legislation that is possibly unconstitutional. More problematically, set against the backdrop of the "Partial Birth Abortion Ban Act of 2003," the essay asks whether an individual who violates the contested statute after receiving a preliminary injunction from a federal district court may be prosecuted if the statute is later upheld as constitutional. The essay analyzes competing arguments by Justice Stevens and Justice Marshall in Edgar v. MITE Corp., which involved a federal preliminary injunction against enforcement of a state statute. Siding with Justice …
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 …
Statutory Interpretation Of Federal Jurisdictional Statutes: Jurisdiction Of The Private Right Of Action Under The Tcpa, Fabian D. Gonell
Statutory Interpretation Of Federal Jurisdictional Statutes: Jurisdiction Of The Private Right Of Action Under The Tcpa, Fabian D. Gonell
Fordham Law Review
No abstract provided.
Women In The Federal Judiciary: Three Way Pavers And The Exhilirating Change President Carter Wrought, Ruth Bader Ginsburg, Laura W. Brill
Women In The Federal Judiciary: Three Way Pavers And The Exhilirating Change President Carter Wrought, Ruth Bader Ginsburg, Laura W. Brill
Fordham Law Review
No abstract provided.
Head-Of-State Immunity In The United States Courts: Still Confused After All These Years, Shobha Varughese George
Head-Of-State Immunity In The United States Courts: Still Confused After All These Years, Shobha Varughese George
Fordham Law Review
No abstract provided.
The Office Of Chief Judge Of A Federal Court Of Appeals, Wilfred Feinberg
The Office Of Chief Judge Of A Federal Court Of Appeals, Wilfred Feinberg
Fordham Law Review
No abstract provided.
The Alien Tort Statute: International Law As The Rule Of Decision, Richard A. Conn, Jr.
The Alien Tort Statute: International Law As The Rule Of Decision, Richard A. Conn, Jr.
Fordham Law Review
No abstract provided.
Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin
Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin
Faculty Scholarship
This Article focuses on the question whether, or to what extent, a federal court is bound by the explicit and implicit restrictions placed by Congress on a court's power to admit evidence. This is a question that did not arise prior to adoption of the Federal Rules of Evidence because previous prospective rulemaking in the procedural area was in truth a judicial exercise. Although Congress had an implicit veto power over rules of procedure prescribed by the Supreme Court, it never exercised that power. Thus, a lower court's decision to disregard a rule of procedure raised, as a practical matter, …
Power To Define The Constitutional Rights Of Defendants: Congress And The Federal Courts , Richard A. Givens
Power To Define The Constitutional Rights Of Defendants: Congress And The Federal Courts , Richard A. Givens
Fordham Law Review
No abstract provided.