Federal Courts

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Volume 93.3
Against General Law Constitutionalism
Joshua C. Macey
Professor, Yale Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

Ketan Ramakrishnan
Associate Professor, Yale Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

Brian M. Richardson
Professor, Cornell Law School.

The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.

This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.

Constitutional Law Federal Courts
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Comment
Volume 92.7
Complete Preemption via Historical Evolution
Ryan Jain-Liu
B.A. and B.S. 2023, The University of California, Berkeley; J.D. Candidate 2026, The University of Chicago Law School.

I would like to thank Professor Douglas Baird, Professor Jared Mayer, and members of The University of Chicago Law Review, including Margaret Schaack, Zoë Ewing, Miranda Coombe, Eric Haupt, and Jack Brake, for their invaluable assistance.

Complete preemption is a jurisdictional doctrine in which a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it extra federal. In this Comment, Ryan Jain-Liu tracks the historical evolution of U.S. bankruptcy to make this second showing. In doing so, this Comment observes two entwined trends in the history of U.S. bankruptcy: bankruptcy simultaneously became more remedial—and thus more voluntary—as the federal government asserted increased control over bankruptcy law. The dual developments toward bankruptcy-as-remedy and bankruptcy-as-federal combine to provide involuntary debtors special protection and to give involuntary bankruptcy a special federal nature. Finally, this Comment expands on the case study of involuntary bankruptcy to argue that historical evolution can form the basis for recognizing an area of law’s special federal nature and support application of the complete preemption doctrine to novel contexts.

Bankruptcy Federal Courts Legal History
Online
Essay
Saldana v. Glenhaven Healthcare LLC—Should Wrongful Death Suits from COVID-19 Be Heard Exclusively in Federal Courts?
Bethany Ao
Bethany Ao is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

She thanks Matthew Makowski, Abigail Barney, Annie Kors, and the University of Chicago Law Review Online team. She also thanks the health reporters at the Philadelphia Inquirer for inspiring this piece.

After Ricardo Saldana suffered a stroke in 2014, his family moved him into Elms Convalescent Hospital, a skilled nursing facility in Glendale, California, so he could receive the care he needed.

Civil Procedure Federal Courts Torts
Online
Essay
Offended-Observer Standing’s Last Stand: Kennedy as the Final Nail in a Flawed Doctrine’s Coffin
Stephen Vukovits
Stephen Vukovits is a J.D. Candidate at the University of Chicago Law School, Class of 2024.

He thanks Matthew Makowski, Anson Fung, Virginia Robinson, and the University of Chicago Law Review Online team.

This past term, the Supreme Court in Kennedy v. Bremerton School District (2022) formally overturned the notorious Lemon test that had governed Establishment Clause jurisprudence for more than a half-century.

Federal Courts First Amendment
Online
Essay
Distributing the Corporation’s Brain: Principal Place of Business Without Physical Presence
Nicholas Hallock
Nicholas Hallock is a staff member of The University of Chicago Law Review and a J.D. candidate in the University of Chicago Law School class of 2022. He received his B.A. from Columbia University in 2017.

Thanks to the editors of The University of Chicago Law Review for their help with this piece.

During the COVID-19 pandemic, many businesses transitioned to remote work for some or all of their employees, relying on videoconference platforms like Zoom and Microsoft Teams for communication.

Distributed Corporations Federal Courts Jurisdiction Principal Place of Business
Online
Essay
The Organization Judge
David Zaring
Professor of Legal Studies, The Wharton School of the University of Pennsylvania.

Thanks to Benjamin Barton, Adam Chilton, Brian Feinstein, Jonathan Nash, and Anne Joseph O’Connell for invaluable comments, and to Michelle Mohr for research assistance. © 2020, David Zaring.

In the 1950s, American corporate executives were overwhelmingly white, male, and valued progression within well-defined hierarchies over creativity.

Appellate Courts Donald Trump Federal Courts Judicial Appointments
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Article
78.2
The Alien Tort Statute and the Law of Nations
Anthony J. Bellia Jr
Professor of Law and Notre Dame Presidential Fellow, Notre Dame Law School
Bradford R. Clark
William Cranch Research Professor of Law, The George Washington University Law School

We thank Amy Barrett, Tricia Bellia, Curt Bradley, Paolo Carozza, Burlette Carter, Anthony Colangelo, Michael Collins, Anthony D’Amato, Bill Dodge, Rick Garnett, Philip Hamburger, John Harrison, Duncan Hollis, Bill Kelley, Tom Lee, John Manning, Maeva Marcus, Mark McKenna, Henry Monaghan, David Moore, Julian Mortenson, Sean Murphy, John Nagle, Ralph Steinhardt, Paul Stephan, Ed Swaine, Jay Tidmarsh, Roger Trangsrud, Amanda Tyler, Carlos Vázquez, Julian Velasco, and Ingrid Wuerth for helpful comments. In addition, we thank participants in the 2010 Potomac Foreign Relations Law Roundtable at The George Washington University Law School, the 2010 Workshop of the International Law in Domestic Courts Interest Group of the American Society of International Law at the University of Virginia School of Law, and faculty workshops at The George Washington University and Notre Dame Law Schools. We give special thanks to research librarian Patti Ogden for her exceptional, expert research assistance. We also thank Notre Dame law students and alumni Nick Curcio, Katie Hammond, John Lindermuth, and Carolyn Wendel and George Washington University law students and alumni Benjamin Kapnik, Heather Shaffer, and Owen Smith for excellent research assistance.

Federal Courts International Law Jurisdiction

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