Courts Commons^™

Congressional Silence And The Statutory Interpretation Game, Paul Stancil

Faculty Scholarship

This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.

Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David G. Carlson

Articles

In this article, we examine the recent case of Hotel 71 Mezz Lender LLC v. Falor (2010), from the New York Court of Appeals. In this case, New York’s highest court held that LLCs are “present” in New York for jurisdictional purposes when the president of the LLC has submitted to New York jurisdiction in an unrelated law suit against him personally, and where the president came to New York for a deposition in that action. This, we claim, was unconstitutional. In addition, the New York Court of Appeals pronounced itself obliged by the United States Constitution to change the …

Undue Burdens In Texas, Jennifer S. Hendricks

Publications

No abstract provided.

Textualism And Obstacle Preemption, John D. Ohlendorf

Georgia Law Review

Commentators, both on the bench and in the academy,
have perceived an inconsistency between the Supreme
Court's trend, in recent decades, towards an increasingly
formalist approach to statutory interpretation and the
Court's continued willingness to find state laws preempted
as "obstacles to the accomplishment and execution of the
full purposes and objectives of Congress'"--so-called
"obstacle preemption." This Article argues that by giving
the meaning contextually implied in a statutory text
ordinary, operative legal force, we can justify most of the
current scope of obstacle preemption based solely on
theoretical moves textualism already is committed to
making.
The Article first sketches …

A Reliance Approach To Precedent, Hillel Y. Levin

Georgia Law Review

Why and when should courts presumptively defer to their
own past precedents? The doctrine of precedent lies at the
core of American jurisprudence and legal practice, but the
source of its normative force remains unclear.
Consequently, its application is confused and contested.
In this Article, I argue that precedent matters because
and to the extent that it generates reliance interests on the
part of the public. Although I am not the first to suggest
that reliance is the foundational justification for deference
to precedent, this Article represents the first sustained effort
to defend the reliance approach in deontological terms and …

Jurisdictional Sequencing, Alan M. Trammell

Georgia Law Review

The Supreme Court has begun to grapple with the
problems presented by the doctrine of jurisdictional
sequencing-the decision of certain issues, and even the
dismissal of cases, before a federal court has verified its
subject matter jurisdiction. Recent jurisprudence has
created confusion as to what, if anything, a federal court
may do before it verifies subject matter jurisdiction.
Moreover, scholars and courts have struggled to discern
an underlying rationale for jurisdictional sequencing, and
no theory has been able to explain the case law fully or
offer a satisfying normative defense of the doctrine.

This Article develops a theory of jurisdictional …

Interagency Litigation And Article Iii, Joseph W. Mead

Georgia Law Review

Agencies of the United States often find themselves on
opposite sides of the "v. " in disputes ranging from alleged
unfair labor practices in federal agencies, to competing
statutory interpretations, to run-of-the mill squabbles over
money. Yet Article III's case-or-controversy requirement

includes--at a minimum-adverse parties and standing.
Courts have disagreed with one another over the extent to
which litigation between the sovereign and itself meets
Article III standards. Despite the volume of scholarship
on Article III standing, relatively little attention has been
paid to Article III's requirement of adverse parties in
general, or the justiciability of intrabranch litigation in
particular. …

State Power To Define Jurisdiction, Samuel P. Jordan, Christopher K. Bader

Georgia Law Review

States should have broader authority to decline
jurisdiction over federal claims. The normative
considerations supporting this doctrine of "reverse
abstention" have been developed in previous work. But
what of the Constitution? The traditional reading,
reflected in existing precedent, asserts that the Supremacy
Clause, Article III, and perhaps Article I operate together
to create an inflexible obligation for state courts to hear
federal claims. This reading is misguided. The
Supremacy Clause contains no jurisdictional obligation of
its own force, but only gives supreme effect to other validly
enacted federal laws. And no other clause provides the
authority to impose such an …

Protect Yourself: Why The Eleventh Circuit's Approach To Sanctions For Protective Order Violations Fails Litigants, Adam J. Fitzsimmons

Georgia Law Review

Litigants commonly struggle to balance the need to comply with discovery requests and the desire to protect valuable trade secrets. Protective orders to help strike that balance. Questions arise, however, when one of the parties violates that protective order and discloses the opponent's confidential information. Chiefly, what remedies are available for a party whose invaluable intellectual property has been disclosed? At least one circuit has held the most common sanction, payment of attorney's fees, is unavailable for a violation of a protective order. Generally, Federal Rule of Civil Procedure 37(b)(2) governs sanctions for violations of discovery orders, but the text …

Judicial Gatekeeping Of Suspect Evidence: Due Process And Evidentiary Rules In The Age Of Innocence, Keith A. Findley

Georgia Law Review

The growing number of wrongful convictions exposed
over the past two-and-a-half decades, and the research
that points to a few recurring types of flawed evidence in
those cases, raise questions about the effectiveness of the
rules of evidence and the constitutional admissibility
standards that are designed to guard against unreliable
evidence. Drawing on emerging empirical data, this
Article concludes that the system can and should be

adjusted to do a better job of guarding against undue
reliance on flawed evidence. The Article first considers the
role of reliability screening as a constitutional concern.
The wrongful convictions data identify what might …

Searching For Truth In The American Law Of Evidence And Proof, D. Michael Risinger

Georgia Law Review

The ideology of the trial process puts discovery of truth
at center stage. This is made clear by the language of
Federal Rule of Evidence 102, upon which New Georgia
Rule of Evidence 24-1-1 is obviously based. Both of these
rules make the ascertainment of truth one of the two goals
of the trial (just determination being the other). However,
the term "truth" has been used in many ways in many
different contexts and traditions. What notion of truth did
the drafters have in mind?
This Article answers that question by reference to what
has come to be known as …