Litigation Commons^™

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Government Corruption And The Right Of Access To Courts, Una A. Kim

Michigan Law Review

This Note addresses the question left unanswered in Harbury: whether these denial of access-to-courts cases, which Justice Souter termed "backward-looking" access claims, are valid exercises of a constitutional right. Backward-looking access claims such as Harbury's differ from traditional denial of access-to-courts claims in that their aim is not to remove impediments to bringing causes of action in the future. Rather, backward-looking access claims allege that a suit that could have been filed in the past was not brought or was not litigated effectively, because access to the courts was at that time denied or obstructed by government officials. …

A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner

Journal Articles

No abstract provided.

Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Michigan Law Review

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Avoidable Due Process Confusion: Special Use Hearings In Illinois After Klaeren, 38 J. Marshall L. Rev. 609 (2004), James C. Munson, Christi J. Guerrini

UIC Law Review

No abstract provided.

The Province Of The Judiciary, 37 J. Marshall L. Rev. 325 (2004), William E. Nelson

UIC Law Review

No abstract provided.

The Secret Life Of The Political Question Doctrine, 37 J. Marshall L. Rev. 441 (2004), Louis Michael Seidman

UIC Law Review

No abstract provided.

Family Leave Policies Trump States Rights: Nevada Department Of Human Resources V. Hibbs And Its Impact Of Sovereign Immunity Jurisprudence, 37 J. Marshall L. Rev. 599 (2004), Jana L. Tibben

UIC Law Review

No abstract provided.

The Domestic Security Enhancement Act Of 2003: A Glimpse Into A Post-Patriot Act Approach To Combating Domestic Terrorism, 38 J. Marshall L. Rev. 327 (2004), Timothy Scahill

UIC Law Review

No abstract provided.

The Boundary Of Personal Jurisdiction: The "Effects Test" And The Protection Of Crazy Horse's Name, 38 J. Marshall L. Rev. 381 (2004), Scott Fruehwald

UIC Law Review

No abstract provided.

Finding Religion For The First Amendment, 38 J. Marshall L. Rev. 469 (2004), Troy L. Booher

UIC Law Review

No abstract provided.

State Sovereign Immunity And The Plaintiff State: Does The Eleventh Amendment Bar Removal Of Actions Filed In State Court?, 38 J. Marshall L. Rev. 513 (2004), Virginia F. Milstead

UIC Law Review

No abstract provided.

Rethinking Campaign-Finance Reform: The Pressing Need For Deregulation And Disclosure, 38 J. Marshall L. Rev. 633 (2004), Cecil C. Kuhne Iii

UIC Law Review

No abstract provided.

Remaining Silent: A Right With Consequences, 38 J. Marshall L. Rev. 649 (2004), Jeffrey D. Waltuck

UIC Law Review

No abstract provided.

Permitted But Not Intended: Boub V. Township Of Wayne, Municipal Tort Immunity In Illinois, And The Right To Local Travel, 38 J. Marshall L. Rev. 545 (2004), Bruce Epperson

UIC Law Review

No abstract provided.

Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004), Mark Tushnet

UIC Law Review

No abstract provided.

Constitutional Courage, Harry W. Arthurs

Articles & Book Chapters

In this lecture, Professor Arthurs argues that we are currently in need of "constitutional courage"-the courage to say "no" to ambitious projects of constitutional reform and constitutional litigation as a way to solve our pressing social and political problems. Professor Arthurs first lays out why our current obsession with the constitution is problematic. He insists that we do not even know what the supposed "supreme law of Canada" actually is, what it says, or even what it does. Moreover, instead of transforming society, the current "cult of constitutionalism" has only served to transform legal practice and scholarship. ei then surmises …

The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

The Exclusion Of Felons From Jury Service, Brian C. Kalt

American University Law Review

The lifetime exclusion of felons from jury service is the majority rule in the U.S., used in thirty one states and in federal courts. The result is that over 6% of the adult population is excluded, including about 30% of black men.

The parallel issue of felon disenfranchisement has drawn considerable scholarly attention, despite its lower, declining, and less racially charged numbers. The racial composition of juries has been widely discussed in the literature as well. By contrast, felon jury service has been almost entirely ignored, despite a mass of legislation and appellate litigation, and despite glaring racial disparities.

One …

Mandamus As A Weapon Of "Class Warfare" In Sixth Amendment Jurisprudence: A Case Comment On United States V. Santos, 36 J. Marshall L. Rev. 733 (2003), John F. Costello Jr.

UIC Law Review

No abstract provided.

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Prologue: Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Luke Charles Harris

Michigan Journal of Race and Law

The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.

Thermal Imaging And The Fourth Amendment: The Role Of The Katz Test In The Aftermath Of Kyllo V. United States, Gregory Gomez

NYLS Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.