Legal History Commons^™

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment, Arthur D. Hellman

Articles

For more than 70 years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational …

Shifting Sands For The Stateless Under The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

Articles

The Foreign Sovereign Immunities Act (FSIA) grants foreign sovereigns immunity from suit in U.S. courts, but also sets forth some exceptions. One exception to a foreign sovereign’s immunity occurs if its expropriation of property violates international law. Where the sovereign has expropriated property from its own nationals, however, the sovereign still remains immune from suit. This “domestic takings” rule is consistent with general principles of international law, although international law increasingly has been challenging a State’s right to mistreat its own nationals. In 2023, in Simon v. Republic of Hungary, the D.C. Circuit considered the issue of stateless plaintiffs, …

Judge Edward T. Gignoux — A Personal Appreciation, Frank M. Coffin

Maine Law Review

Most occasions for encomia about judges occur when the subject has departed the scene of his accomplishments. Happily, the subject of this issue of the Maine Law Review is still with us and likely to be so for a long time. He also happens to measure up precisely to the overused word "paragon." I use it in the original Latin sense of "whetstone," something to sharpen against or to compare oneself with. My thesis is that Judge Gignoux gives observers of any age, but particularly the young, an inspiring role model. This volume is felicitously dedicated. The ever-present problem is …

Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins

Maine Law Review

Preserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that "government" became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for …

The Constitution Without Tears, Gene Carter

Maine Law Review

The coming plethora of Bicentennial speeches and activities are intended to provide occasions for public figures and private persons to say something helpful to a current and realistic understanding of the role of the Constitution in our daily lives; and, hopefully, something at least modestly expository of our duties as citizens of American constitutional democracy.

The Afro-American And The Constitution: Colonial Times To The Present, James L. Watson

Maine Law Review

The theme of this essay is the Afro-American and the Constitution: Colonial Times to the Present. When I was told about this theme, my first reaction was to follow the advice of the famous black philosopher, Satchel Paige, who said, "Don't look back because what is behind you might be catching up." My discipline, however, forced me to look back at the Constitution and particularly how it has affected black Americans.

A Commemorative, Eric Robert Herlan Editor-In-Chief

Maine Law Review

In this issue the Maine Law Review joins in the national celebration of the Bicentennial of the United States Constitution. Three distinguished federal judges, all of whom are intimately familiar with that great document, have kindly contributed essays to the Review based on speeches they have earlier given for the Bicentennial. We are happy to present these essays, each of which has an important perspective on the Constitution, as our commemorative on this special occasion.

A Genealogy Of Founders, Frank M. Coffin

Maine Law Review

Two hundred years ago this spring George Washington wrote to our fellow Mainer, General Henry Knox, that because of the illness of his mother he would not be able to attend the Philadelphia Convention. If her health had not speedily improved, we might have had quite a different kind of Bicentennial, for both Washington and Benjamin Franklin, though largely silent in the debates, were palpable sources of strength. As it is, we have the happy occasion to celebrate what Everett Ladd has called "the expression of a nation-defining consensus on political values," our nationalizing principle, the one supreme bond linking …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

Law And Equity On Appeal, Aaron-Andrew P. Bruhl

Faculty Publications

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, …

The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke

Brooklyn Law Review

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

Populist Secularism, Seval Yildirim

Journal Articles

This article argues that in the context of a developing democracy, the rise of religiously oriented parties should be viewed contextually as part of an ongoing process of democratic negotiation and consolidation. Using Turkey as a case study, this article argues that religion and secularism are best viewed as parts of a symbiotic relationship, informing each other’s identity, and defining characteristics through an ongoing process of negotiation.

The article discusses commonly used concepts relevant to secularism in general and argues for the need to distinguish between the secular, secularism, and secularization as a governance project. Through a historical survey of …

Public Men's Rooms And The Legal Construction Of Gender And Privacy, Steven J. Macias

University of Cincinnati Law Review

This Article examines how the law is complicit in educating and socializing children into the cultural practices of gender and privacy. It accomplishes this by analyzing case law that involves minors and men’s public bathrooms. The men’s room is a place rife with social ambiguity, an ambiguity that has come to a head in recent transgender school bathroom cases. Although this Article is primarily concerned with the men’s bathroom as an important legal site in the development of gender and privacy for all youth, it discusses transgender (trans) rights cases as presenting the most fundamental challenge to the hegemonic logic …

Confronting The War On International Law In The United States, Rebecca Ingber

Faculty Online Publications

Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.

A Taking By Any Other Name: Why Exclusionary Zoning Should Be Classified As A Per Se Taking, Matthew J. Ruppel

Seattle University Law Review Online

The housing affordability crisis in U.S. cities, particularly on the West Coast, has been well publicized in recent years, and the search for solutions has drawn together allies from across the ideological spectrum. While various cities and states have rolled out many types of reforms, there remains a widespread regulatory failure preventing the adaptation of cities to modern demands. A primary culprit is exclusionary zoning: plot-by-plot designation of which types of structures can be built on a piece of property— particularly which types of structures are absolutely prohibited from being built—and the broad definitional standards to which those structures must …

With Thanks From A Student And Alumna, Nancy Diesel Mills

Maine Law Review

On the first day of orientation for my law school class, we sat in the Moot Courtroom. After introductory remarks, the Dean was announced. He wore a button down collar shirt, Rep tie, gray suit, and Bean boots. He welcomed us and he told us how great we were. Mostly, he cracked jokes, some about himself, and rattled whatever it is he keeps in his pockets. It was classic Kinvin; and I knew, then, that I had chosen the right place.

L. Kinvin Wroth: A Personal Canadian Appreciation, Innis Christie

Maine Law Review

I became Dean of Dalhousie Law School in Halifax, Nova Scotia, Canada in July of 1985. Since then Kinvin Wroth has been one of the constants, and one of the big pluses, in my working life.

A Tribute To A Colleague Who Has Endured, Orlando E. Delogu

Maine Law Review

There is a certain vogue in the academic world, and certainly in the field of Law, that would measure one's worthy and real value to the profession by the number of astute moves from school to school made in the course of a career. One hoped to ascend, at four or five year intervavls, an unpublished but generally accepted institutional hierarchy (or pecking order). Each move would be marked by acknowledged teaching accomplishment and scholarly writing. In the professional life well-lived these moves would culminate in a chair or senior professorship at any one of ten or a dozen national …