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Articles 661 - 690 of 964
Full-Text Articles in Civil Procedure
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Law Faculty Publications
No abstract provided.
Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala
Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Everyone Knows Medellin; Has Anyone Heard Of O'Brien? Reconciling The United States And The International Community By Amending The Vccr, 43 J. Marshall L. Rev. 817 (2010), Steven M. Novak
UIC Law Review
No abstract provided.
Is Ashcroft V. Iqbal The Death (Finally) Of The “Historical Test” For Interpreting The Seventh Amendment?, Kenneth S. Klein
Is Ashcroft V. Iqbal The Death (Finally) Of The “Historical Test” For Interpreting The Seventh Amendment?, Kenneth S. Klein
Faculty Scholarship
There is the possibility that the recent Supreme Court decision of Ashcroft v. Iqbal finally will be the necessary impetus to revisit one of the more bizarre but enduring canards of American jurisprudence -- the way we interpret the Seventh Amendment's preservation of a right to a jury trial in federal civil litigation. The Seventh Amendment provides that "[i]n suits at common law ... the right of trial by jury shall be preserved." To this day, the way we apply the Seventh Amendment-in other words, what we interpret to be the constitutional intent and mandate of our Founders-is to postulate …
Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman
Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman
Faculty Publications
Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a "mismatch " between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S. C. §S 1983 and Bivens, …
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin
The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin
Faculty Scholarship
In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to …
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
Faculty Scholarship
In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
American University Law Review
No abstract provided.
Law Day Oral Argument Session 5th District Court Of Appeal, 2009, Honorable Jacqueline R. Griffin, Presiding Judge, Honorable C. Alan Lawson, Honorable Kerry I. Evander
Law Day Oral Argument Session 5th District Court Of Appeal, 2009, Honorable Jacqueline R. Griffin, Presiding Judge, Honorable C. Alan Lawson, Honorable Kerry I. Evander
Law Day Presentations
As part of Law Day, a panel of three justices from the Florida Fifth District Court of Appeal hear oral arguments for the following three cases: Huck v. State, Alsobiae v. Parkinson, and Demings, Sheriff v. Orange County Citizen Review Board. Following each oral argument, the Court takes questions on Court procedures and operations.
The Partially Prudential Doctrine Of Mootness, Matthew I. Hall
The Partially Prudential Doctrine Of Mootness, Matthew I. Hall
Scholarly Works
The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …
Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala
Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi
Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi
UIC Law Review
No abstract provided.
Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein
Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein
Faculty Scholarship
Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge …
Statutory Standing And The Tyranny Of Labels, Radha A. Pathak
Statutory Standing And The Tyranny Of Labels, Radha A. Pathak
Oklahoma Law Review
Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Touro Law Review
No abstract provided.
Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss
Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss
Publications
No abstract provided.
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 …
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
Faculty Scholarship
As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, …
The Monumental Ally: Chief Justice John Marshall And The Protection Of The United States Constitution, Mattea C. Carver
The Monumental Ally: Chief Justice John Marshall And The Protection Of The United States Constitution, Mattea C. Carver
Mahurin Honors College Capstone Experience/Thesis Projects
The culmination of this particular research intends to analyze U.S. Supreme Court Chief Justice John Marshall's judicial opinions with historical perspectives. Special emphasis is placed upon Marshall's motives for promoting the interests of the national government over the interests of the individual states and their respective governments and the interests ofthe federal judiciary over its fellow branches. Overall, it can be successfully argued that Marshall's influence was not to promote the individual branch of the federal judiciary, but rather promote the necessity of a strong national government. The research utilizes primary and secondary sources including Marshall's judicial opinions, his personal …
Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins
Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins
Law Faculty Articles and Essays
Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)
Chinese And Western Worldviews: Implications For Law, Policy,, Jeffrey C. Tuomala
Chinese And Western Worldviews: Implications For Law, Policy,, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
The Bible And American Law: A Response To Dean Herbert W. Titus, Jeffrey C. Tuomala
The Bible And American Law: A Response To Dean Herbert W. Titus, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves
The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves
Georgia Law Review
In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …
Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor
University of Richmond Law Review
No abstract provided.
Boundary Waters Treaty Of 1909 As A Model For Interjurisdictional Water Governance, Robert H. Abrams
Boundary Waters Treaty Of 1909 As A Model For Interjurisdictional Water Governance, Robert H. Abrams
Journal Publications
In an age of increasing interjurisdictional water conflict and water management concern, the list of accomplishments of the Boundary Water Treaty of 1909 (BWT), reached in a harmonious manner, raises the possibility that, perhaps, the management mechanisms of the BWT might beneficially be used in other contexts. This Article will take up that possibility in the context of three contemporary American interstate water allocation disputes. These disputes are (1) a relatively simple cross-border complaint by a downstream state, South Carolina, that North Carolina cities are using too much water of the Catawba River; (2) the basin-wide dispute regarding water use …
Great (And Reasonable) Expectations: Fourth Amendment Protection For Attorney-Client Communications, Teri J. Dobbins
Great (And Reasonable) Expectations: Fourth Amendment Protection For Attorney-Client Communications, Teri J. Dobbins
Seattle University Law Review
Most motor vehicle crashes are traceable to “some failure of judgment that fully reveals its dangers only when it is too late. That is precisely why they are accidents.” For example, speeding is one of the most prevalent factors contributing to vehicular crashes. Although especially deadly when combined with driver intoxication, speeding is a significant contributing factor in fatal crashes involving sober drivers. Part II of this Article briefly discusses the development of accident insurance. It examines courts' struggles in determining whether an insured's death was an accident for purposes of awarding accidental death benefits, and approaches to resolving this …
Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer
Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer
Faculty Articles
Article III authorizes and the Judicial Code grants federal subject matter jurisdiction over civil cases "arising under" federal law. The Supreme Court has interpreted these words differently, however, in their constitutional and statutory contexts. While the constitutional text is read broadly, the Court has imposed three limitations on the same words in the statutory grants of federal question jurisdiction: (1) the ''well-pleaded complaint" rule; (2) a requirement that the federal issues be sufficiently "direct" or "central', to the dispute to justify access to the federal courts; and (3) a requirement that the federal assertion be "substantial." These limitations are meant …
Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown
Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown
Journal Articles
Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …