Law Commons^™

The Federal Equity Power, Michael T. Morley

Scholarly Publications

Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as injunctions, …

The Clean Power Plan, The Supreme Court’S Stay, And Irreparable Harm, Erin Ryan

Scholarly Publications

Invited by the American Constitution Society, this very short essay critiques the decision by the Supreme Court to stay implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while twenty-nine states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. It provides for substantial flexibility in how reduction targets may be attained within states, but generators heavily invested in coal argue that implementation will require unfair and expensive changes. It therefore surprised no one that states closely aligned …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Scholarly Publications

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court's fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued …

Negotiating Federalism And The Structural Constitutionn: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

No abstract provided.

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

A Proposed Check On The Charging Discretion Of Wisconsin Prosecutors, Wayne A. Logan

Scholarly Publications

With the emergence of the increasingly vocal victims' rights movement and a more general punitive emphasis in criminal justice, the issue of prosecutorial discretion in the decision of whether to charge a suspect with a crime has assumed paramount importance. In two recent cases the Wisconsin Supreme Court addressed the fundamental question of whether it is the responsibility of the local prosecutor or the court to charge a suspect with a crime. This Comment examines these two cases, Unnamed Petitioners v. Connors, decided in 1987, and State v. Unnamed Defendant, decided in 1989. The Comment concludes that the charging mechanism …