Courts Commons^™

Undoing Indian Law One Case At A Time: Judicial Minimalism And Tribal Sovereignty, Sarah Krakoff

Publications

No abstract provided.

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

Publications

In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

The Effect Of The United States Supreme Court's Decisions During The Last Quarter Of The Nineteenth Century On Tribal Criminal Jurisdiction, Christopher B. Chaney

Brigham Young University Journal of Public Law

No abstract provided.

Treatment Of Multi-Courts Jurisdiction Agreements, Seow Hon Tan

Research Collection Yong Pung How School Of Law

An increasingly popular manner of drafting jurisdiction clauses in cross-border contracts involves the selection of the courts of more than one jurisdiction. Traditionally, parties would submit all disputes to the courts of a particular country under an exclusive jurisdiction agreement or agree that the transaction is subject to a particular jurisdiction without intending to create an obligation to proceed there and nowhere else. Of late, the Singapore courts have encountered litigation over multi-courts jurisdiction agreements. A common form involves the naming of a particular court with one of the parties being given the option to proceed anywhere else.

John Marshall In Spencer Roane's Virginia: The Southern Constitutional Opposition To The Marshall Court, 33 J. Marshall L. Rev. 1131 (2000), F. Thornton Miller

UIC Law Review

No abstract provided.

The Statute Of The International Criminal Court And Third States, Gennady M. Danilenko

Michigan Journal of International Law

This paper examines the principal legal and political effects of the Rome Statute on non-parties. In particular, it explores the significance of the creation of a new powerful international institution for all members of the international community. It discusses the jurisdictional reach of the ICC which will inevitably affect all States. This paper also analyzes possible application of some provisions of the Rome Statute to non-States Parties in so far as these may reflect or generate customary international law. It suggests that despite the traditional principle of treaty law, according to which treaties do not bind Third States, the Rome …

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

Scholarly Works

This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

Delaware As Demon: Twenty-Five Years After Professor Cary's Polemic, Mark J. Loewenstein

Publications

No abstract provided.

Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser

Michigan Journal of Race and Law

This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when …

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 Earmarking Defense To Voidable Preference Liability: A Reconceptualization, David G. Carlson, William H. Widen

Articles

The article argues that the earmarking doctrine, a judge-created exception to 547b liability, should be reinterpreted under 547c1 of the Bankruptcy Code. It posits that the doctrine's current reliance on vague concepts like "control" is legally unsound and inconsistent with statutory intent. By aligning earmarking with the contemporaneous exchange defense under 547c1, the analysis would focus on the parties' intent and the timing of the exchange, eliminating the need for the controversial control criterion. This approach would bring clarity and consistency to bankruptcy law, preventing arbitrary outcomes and ensuring compliance with the Bankruptcy Code.

Invading An Article Iii Court's Inherent Equitable Powers: Separation Of Powers And The Immediate Termination Provisions Of The Prison Litigation Reform Act, Theodore K. Cheng

Washington and Lee Law Review

No abstract provided.

Comments On Rooker-Feldman Or Let State Law Be Our Guide, Jack M. Beermann

Faculty Scholarship

I feel privileged to have been asked to be a commentator on the three principal papers in this symposium. These are three excellent papers, and although there has been some valuable commentary on the Rooker-Feldman doctrine, there will be no need to go beyond these papers to gain a full appreciation of the doctrine, its applications, and its problems, which run as deep as the problems of any doctrine.

The Demise Of Hypothetical Jurisdiction In The Federal Courts, Scott C. Idleman

Vanderbilt Law Review

Recent years have witnessed a modest but expanding Supreme Court effort to return the national government to its structural first principles.' Foremost among these is that federal power, although vast, is neither inherent nor unbounded, but consists only of that granted by the Constitution. In 1998, the Court remained steadfast to this precept, thwarting yet another attempt by a federal branch to exceed its limited and enumerated constitutional powers. This time, however, the perpetrator was none other than the Article IH judiciary itself. In Steel Co. v. Citizens for a Better Environment, the Court formally denounced the federal court practice …

El Federalismo Y La Administración De Justicia En Los Estados Unidos, Robert S. Barker

Barker Papers

In the United States, there is not just one system of justice; there are many. Each of the fifty states has its own constitution, laws, and courts of law. In addition, there is the overall federal justice system, which operates through the federal courts. Federalism profoundly affects the administration of justice in the United States, and the administration of justice, in turn, affects our federalism.

The purpose of this brief essay is to identify the most important aspects of the relationship between federalism and the administration of justice in the United States and its division of governmental powers between the …

Federal Circuit's Forgotten Lessons: Annealing New Forms Of Intellectual Property Through Consolidated Appellate Jurisdiction, 32 J. Marshall L. Rev. 581 (1999), Chris J. Katopis

UIC Law Review

No abstract provided.

What Spending Clause? - (Or The President's Paramour): An Examination Of The Views Of Hamilton, Madison, And Story On Article I, Section 8, Clause 1 Of The United States Constitution, 33 J. Marshall L. Rev. 81 (1999), Jeffrey T. Renz

UIC Law Review

No abstract provided.

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

Michigan Law Review

Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

Association Of American Law Schools Panel On The International Criminal Court, Christopher L. Blakesley

Scholarly Works

Professor Blakesley participates in this panel discussion on the International Criminal Court. The Association of American Law Schools sponsored the panel.

Chevron, Cooperative Federalism, And Telecommunications Reform, Philip J. Weiser

Publications

No abstract provided.

Politics By Other Means: The Law Of The International Criminal Court, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Gazing Into The Crystal Ball: Reflections On The Standards State Judges Should Use To Ascertain Federal Law, Donald H. Zeigler

Articles & Chapters

No abstract provided.

State Immunity Waivers For Suits By The United States, Evan H. Caminker

Articles

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is …

Judicial Coup D'État: Mandamus, Quo Warranto And The Original Jurisdiction Of The Supreme Court Of Arkansas, Logan Scott Stafford

University of Arkansas at Little Rock Law Review

No abstract provided.

Sierra Club V. San Antonio: In Search Of The Appropriate Application Of The Burford Abstention, David Carter

Brigham Young University Journal of Public Law

No abstract provided.

Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties' ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court's unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal …

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

Scholarly Works

Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

Scholarly Works

A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …

Congressional Power Over Federal Court Jurisdiction: A Defense Of The Neo-Federalist Interpretation Of Article Iil, Robert J. Pushaw Jr.

BYU Law Review

No abstract provided.

Erie Awry: A Comment On Gasperini V. Center For Humanities, Inc., C. Douglas Floyd

BYU Law Review

No abstract provided.