Jurisprudence Commons^™

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

The Court Of Appeals As The Middle Child, Raymond Lohier

Fordham Law Review

It’s said that middle children are most likely to be forgotten in the chaos of family life. The same could be said of the U.S. Courts of Appeals, which in 2016, mark their 125th anniversary, and which are the middle child of the federal judicial family. As too few people, even academics, know, the courts of appeals were created in 1891 by the Evarts Act, more than a century after the Constitution and the First Judiciary Act. The history of the courts of appeals has accordingly hovered somewhat uneasily next to that of the U.S. Supreme Court and the district …

The Roberts Court And The New Textualism, Anton Metlitsky

Cardozo Law Review

The article explores the Roberts Court's approach to statutory interpretation, focusing on its adherence to the "new textualism," a methodology emphasizing the plain meaning of statutory text. While recent cases like King v. Burwell, Bond v. United States, and Yates v. United States appear to prioritize statutory purpose over textual meaning, the Court's reasoning reinforces its commitment to textualism by framing decisions within textualist methodology, even when outcomes seem to depart from strict textual interpretation.

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Maximinimalism, Jamal Greene

Cardozo Law Review

The article explores Chief Justice John Roberts' judicial approach, characterizing it as "maximinimalism"—a blend of narrow decision-making with deep, impactful reasoning. While Roberts is often seen as a minimalist for his emphasis on deciding cases narrowly, his rulings in significant cases like Citizens United v. FEC, Shelby County v. Holder, and NFIB v. Sebelius reveal a deeper, more substantive approach that challenges the law, thus embodying maximalist tendencies. This duality allows the Court to influence the law profoundly while maintaining judicial restraint.

Act Of State Doctrine: Actions Of Intervenors Appointed By The Cuban Government And Statements Of Counsel Do Not Constitute Sufficient Acts Of State To Come Within The Doctrine (Alfred Dunhill Of London, Inc. V. Republic Of Cuba, S. Ct. 1976), John C. Stephens

Georgia Journal of International & Comparative Law

No abstract provided.

Trademarks “Lanham Act” Foreign Registrants Need Not Allege Use In The United States And May Waive Filing Requirements Required For Domestic Applications (Scm Corporation V. Langis Foods, Ltd., D.C. Cir. 1976), John A. Cutler

Georgia Journal of International & Comparative Law

No abstract provided.

Jus Cogens In International Law, With A Projected List, Marjorie M. Whiteman

Georgia Journal of International & Comparative Law

No abstract provided.

The World Court And The Peaceful Settlement Of Disputes, Cornelius F. Murphy Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

In Memoriam: Justice Antonin Scalia And The Constitution's Golden Thread, L. Margaret Harker

University of Richmond Law Review

No abstract provided.

El Derecho A Abortar Implica La Explotación Y El Abandono De Las Mujeres, Richard Stith

Law Faculty Publications

No abstract provided.

Rechazos Fundamentales De La Doctina De Roe V. Wade, Richard Stith

Law Faculty Publications

No abstract provided.

La Construcción Contra El Desarrollo: Dos Maneras Distintas De Entender La Gestación Humana, Richard Stith

Law Faculty Publications

No abstract provided.

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …

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 …

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

What Remains "Real" About The Law And Literature Movement?: A Global Appraisal, Richard H. Weisberg

Articles

The article explores the enduring relevance and global expansion of the Law and Literature movement, emphasizing its unique contribution to legal discourse by analyzing how narratives reveal the operation of law, the interpretations of legal authorities, and the identifiable causes of legal errors. It argues that literary jurisprudence provides a distinct methodology for understanding jurisprudence, challenging traditional legal scholarship and offering insights into systemic injustices and pathways to justice.

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …