Double Jeopardy,
2019
Touro University Jacob D. Fuchsberg Law Center
21st Annual Open Government Summit: Office Of The Attorney General, Access To Public Records Act & Open Meetings Act,
2019
Roger Williams University
21st Annual Open Government Summit: Office Of The Attorney General, Access To Public Records Act & Open Meetings Act, Attorney General State Of Rhode Island
School of Law Conferences, Lectures & Events
No abstract provided.
Overruling Mcculloch?,
2019
University of Marlyand, Baltimore
Overruling Mcculloch?, Mark A. Graber
Arkansas Law Review
Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …
M'Culloch In Context,
2019
University of Arkansas, Fayetteville
M'Culloch In Context, Mark R. Killenbeck
Arkansas Law Review
M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example, very few …
The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?,
2019
University of Texas, Austin
The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson
Arkansas Law Review
All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition …
Singapore,
2019
Singapore Management University
Singapore, Tan K. B. Eugene
Research Collection Yong Pung How School Of Law
The Singapore Government recognises and is committed to legal aid as an integral part of access to justice. Sixty years ago in 1958, Singapore was the first country in Southeast Asia to enact a legal aid scheme, which provided for the establishment of the Legal Aid Bureau (LAB) to provide civil legal aid to persons of limited means. Over the course of independent Singapore’s history, legal aid as part of the overall access to justice has broadened significantly. Members of Parliament make regular calls for more people to qualify and receive government-funded legal aid. The government regards access to justice …
An Organizational Account Of State Standing,
2019
Texas A&M University School of Law
An Organizational Account Of State Standing, Katherine Mims Crocker
Faculty Scholarship
Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.
Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …
The Territorial Reach Of Federal Courts,
2019
William & Mary Law School
The Territorial Reach Of Federal Courts, A. Benjamin Spencer
Faculty Publications
Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …
Why Don’T Judges Case Manage?,
2019
Administrative Judge, Circuit Civil Division, Eleventh Judicial Circuit
Why Don’T Judges Case Manage?, Hon. Jennifer D. Bailey
University of Miami Law Review
The problems of cost and delay experienced by parties seeking civil justice have been the subject of complaints for nearly one hundred years, going back to the days of Roscoe Pound. In the past few years, court leadership across the country has emphasized judicial case management as a significant tool for delivery of cost-effective, fair, and timely civil justice. The declining civil caseload has brought new urgency to these problems as evidence grows that litigants are deserting the civil justice system. Calls for case management to contain cost and delay have come from the Chief Justice of the United States, …
Categorical Confusion In Personal Jurisdiction Law,
2019
George Washington University
Categorical Confusion In Personal Jurisdiction Law, Todd Peterson
Washington and Lee Law Review
In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme …
The Forgotten Property Right: The Unconstitutionality Of The At Home Standard In Assertions Of General Personal Jurisdiction Over Corporations,
2019
Texas A&M University School of Law (Student)
The Forgotten Property Right: The Unconstitutionality Of The At Home Standard In Assertions Of General Personal Jurisdiction Over Corporations, Peter Kuylen
Texas A&M Journal of Property Law
With its move to the “at home” standard in Goodyear, Daimler, and BNSF, the Supreme Court significantly restricted the exercise of general personal jurisdiction over nonresident corporation defendants. This restriction offers questionable actual benefits to corporate defendants, but its rigid focus on defendant’s rights has impacted the ability of certain plaintiffs to bring a cause of action against those defendants. Because the at home standard infringes on this group of plaintiffs’ ability to assert their property right of redress in violation of the Due Process Clauses of the Constitution (Fifth and Fourteenth Amendments), the Court should return to the previous …
The Federal Courts’ Rulemaking Buffer,
2019
William & Mary Law School
The Federal Courts’ Rulemaking Buffer, Jordan M. Singer
William & Mary Law Review
Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.
Creating An Unprecedented Number Of Precedents At The U.S. Court Of Appeals For Veterans Claims,
2019
William & Mary Law School
Creating An Unprecedented Number Of Precedents At The U.S. Court Of Appeals For Veterans Claims, Natsumi Antweiler
William & Mary Law Review
No abstract provided.
The Ballad Of Harry James Tompkins,
2019
The University of Akron
The Ballad Of Harry James Tompkins, Brian L. Frye
Akron Law Review
On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses …
Remedies, Equity & Erie,
2019
The University of Akron
Remedies, Equity & Erie, Caprice L. Roberts
Akron Law Review
This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants. Because, after all, the choice of federal versus state forum should not dictate the outcome. Further, notwithstanding calls to eliminate vestiges of equity’s unique characteristics and requirements, the gravitational pull of equity remains. There is value in continuing to honor equitable principles. And there is value in federal judges cultivating …
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions,
2019
The University of Akron
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions, Michael T. Morley
Akron Law Review
Federal courts frequently avoid deciding whether federal or state law governs the availability of injunctive relief for state-law claims by simply declaring that both sets of standards are the same. Although federal and state standards for injunctions often incorporate similar elements, those elements often are phrased in somewhat different terms and relate to each other in different ways. Even when federal and state standards involve facially identical elements, federal and state courts often interpret and apply them differently based on completely distinct bodies of precedent that can lead to different outcomes. Because state and federal standards arise from, and refer …
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law,
2019
The University of Akron
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law, Sharon K. Sandeen
Akron Law Review
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.
Jurisdiction Stripping Of The Federal Circuit?,
2019
The University of Akron
Jurisdiction Stripping Of The Federal Circuit?, Shubha Ghosh
Akron Law Review
This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence. Instead of deferring to state law, the court creates its own federal common law of contracts and assignments, creating parallels with the debates arising from the 1938 Erie decision. This federal common law is inconsistent with the need for uniformity in the law governing patent transactions. To resolve this issue, Congress may consider stripping Federal Circuit jurisdiction over state contract law claims. This article examines the pros and cons of this proposal.
Brandeis's Ip Federalism: Thoughts On Erie At Eighty,
2019
The University of Akron
Brandeis's Ip Federalism: Thoughts On Erie At Eighty, Joseph Scott Miller
Akron Law Review
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context? This piece, prepared in connection with the “Erie …
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule,
2019
The University of Akron
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger
Akron Law Review
The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law …
