Courts Commons^™

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

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, …

Certification Of Legal Questions To The Utah Supreme Court, David Nuffer

Duke Law Master of Judicial Studies Theses

For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court.

The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to …

Court Capture, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

Context At The International Criminal Court, Hassan Ahmad

Pace International Law Review

In this article, I propose a contextual approach to ICC jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Procedurally, …

Adverse Interests And Article Iii: A Reply, James E. Pfander, Daniel Birk

Northwestern University Law Review

Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called non-contentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by …

Dueling Grants: Reimagining Cafa’S Jurisdictional Provisions, Tanya Pierce

Georgia State University Law Review

More than a decade after Congress passed the Class Action Fairness Act of 2005 (CAFA), courts continue to disagree as to its application and meaning in a variety of situations, many of which have wide-ranging effects. This article considers a fundamental issue that arises after a certification decision is reached: whether a court’s subject matter jurisdiction under CAFA depends on a class being certified. Specifically, the article considers what happens when a federal court’s subject matter jurisdiction derives solely from CAFA’s minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23 (Rule 23) …

Is It Safe To Speak Up Now? Evaluating The Expansion Of Whistleblower Protection Act Jurisdiction, Gil Landau

Journal of the National Association of Administrative Law Judiciary

Whistleblowers have uncovered billions of dollars of fraud and severe national security threats. Nonetheless, for many years, federal employee whistleblowers faced retaliation and termination. Congress passed the Whistleblower Protection Act (WPA) in an attempt to protect federal employee whistleblowers. But, the exclusive court for WPA appeals, the Federal Circuit, ignored Congressional intent and limited the WPA’s protections. In 2013, Congress responded by creating a five year experiment, known as “all circuit review,” to determine if WPA claims should also be appealable to the regional circuits. Over the past three years, all circuit review has led to modest changes in WPA …

Original Intent: Understanding The Supreme Court's Original Jurisdiction In Controversies Between States, Kristen A. Linsley

The Journal of Appellate Practice and Process

No abstract provided.

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

If We Don’T Bring Them To Court, The Terrorists Will Have Won: Reinvigorating The Anti-Terrorist Act And General Jurisdiction In A Post-Daimler Era, Stephen J. Digregoria

Brooklyn Law Review

Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of …

Infrequently Asked Questions, Edward T. Swaine

The Journal of Appellate Practice and Process

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …

Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, George Bermann, Alan Scott Rau

Pepperdine Law Review

No abstract provided.

Submerged Precedent, Elizabeth Mccuskey

Faculty Scholarship

Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.⁴ But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.

The existence of a submerged body …

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

A 21st Century Approach To Personal Jurisdiction, Robert E. Pfeffer

The University of New Hampshire Law Review

[Excerpt] "Personal jurisdiction doctrine plays a major role in many civil disputes in the United States. When the defendant resides in, is incorporated or headquartered in (in the case of a corporation or other business), or is otherwise found in the particular state where suit is brought, personal jurisdiction generally is found to exist and is unproblematic. Major personal jurisdiction issues usually arise when a plaintiff sues the defendant in a state other than the one in which the defendant is located.

In many cases involving parties located in different states, where a suit takes place is as extensively litigated …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

The Court Of Appeals Of Virginia Celebrates Thirty Years Of Service To The Commonwealth, Hon. Stephen R. Mccullough, Hon. Marla Graff Decker

University of Richmond Law Review

No abstract provided.

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now …

Fletcherian Standing, Merits, And Spokeo V. Robins, Howard Wasserman

Faculty Publications

This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Law Faculty Publications

Time and again, the U.S. Supreme Court has declared that the federal cause of action is "analytically distinct" from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modem usage in the federal courts. This history demonstrates that the federal cause of action is …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …