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From:Duke Law Journal (Vol. 66, Issue 7) Peer-ReviewedMuch of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone's Commentaries on the...
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From:Yale Law Journal (Vol. 124, Issue 5) Peer-ReviewedIV. TOWARD A THEORY OF NON-CONTENTIOUS JURISDICTION A. The Theory Sketched 1. Original and Ancillary Non-Contentious Jurisdiction Having demonstrated the constitutional basis for the non-contentious...
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From:Harvard Law Review (Vol. 124, Issue 7)ARTICLE III AND THE SCOTTISH JUDICIARY Historically minded scholars and jurists invariably turn to English law and precedents when attempting to recapture the legal world of the Framers. Blackstone's famous...
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From:Stanford Law Review (Vol. 72, Issue 3) Peer-ReviewedIn Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the...
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From:Constitutional Commentary (Vol. 12, Issue 2) Peer-ReviewedEssays written under the pseudonym "A Federalist of 1789" addressed issues of judicial power, federal jurisdiction and state's rights. The Marshall Supreme Court's decision in Cohens v. Virginia is defended based on a...
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From:University of Pennsylvania Law Review (Vol. 148, Issue 1)INTRODUCTION Something appears to be going badly wrong with the interpretation of 28 U.S.C. [sections] 1367 ("section 1367"). In the nine short years since Congress enacted it as one of several "noncontroversial"...
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From:Notre Dame Law Review (Vol. 96, Issue 5)In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a "new context." In Ziglar itself, the Court...
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From:Constitutional Commentary (Vol. 11, Issue 1) Peer-ReviewedBoth the contemporary definition and usage of the term "politically correct" can be found in the decision written by US Supreme Court Justice James Wilson in Chisholm v. Georgia. The 1793 decision affirmed the...
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From:Yale Law Journal (Vol. 124, Issue 5) Peer-ReviewedStudents of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete...
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From:University of Pennsylvania Law Review (Vol. 169, Issue 8)Written for a symposium honoring Steve Burbank's contributions to procedure scholarship, this Essay takes Geoff Hazard's monograph, Research in Civil Procedure, as its point of departure. Hazard was remarkably prescient...
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From:Stanford Law Review (Vol. 72, Issue 5) Peer-ReviewedImportant recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, a cornerstone of modern constitutional litigation. Deploying a historically inflected methodology that we...
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From:University of Pennsylvania Law Review (Vol. 159, Issue 2)INTRODUCTION A quiet crisis has developed in the Supreme Court's management of the appellate review of remand orders, one that nicely illuminates the challenges of crafting workable appellate jurisdictional law. (1)...
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From:Constitutional Commentary (Vol. 12, Issue 3) Peer-ReviewedHenry Wheaton published a series of articles in "The American" in support of the US Supreme Court's decision in Cohens v. Virginia in 1821. Wheaton defends the necessity of vesting the US Supreme Court with the power to...
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From:Yale Law Journal (Vol. 124, Issue 5) Peer-ReviewedII. SCHOLARLY REACTIONS TO EX PARTE AND NON-CONTENTIOUS PROCEEDINGS Existing scholarship on the adverse-party requirement has yet to confront the widespread appearance of ex parte and non-contentious proceedings on...
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From:Yale Law Journal (Vol. 107, Issue 2) Peer-ReviewedThe federal courts should invoke federal common law to determine the statute of limitations for civil actions not subject to the 4 year period of limitations codified in the Judicial Improvements Act of 1990 (28 U.S.C....