What\u27s Wrong with This Picture?: Rule Interpleader, the Anti-Injunction Act, In Personam Jurisdiction, and M.C. Escher

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the Supreme Court\u27s narrow interpretation the Act\u27s provisions and discussing the federalism values that the Act and the Court seek to serve. Finally, Part II reviews interpleader\u27s status as an in personam action. Even in setting out the problem, one can conceive of at least three potential solutions. One might simply acknowledge that injunctions are not available in rule interpleader actions. Alternatively, one might reverse the Supreme Court\u27s view of interpleader as an in personam action, recharacterizing it as in rem to get around the strictures of the Anti-Injunction Act. Finally, one might leave interpleader itself untouched but reinterpret the jurisdiction exception to the Anti-Injunction Act. Unfortunately, each of these solutions comes with an unpalatable price. Part III discusses the price of each solution. Part IV considers whether, despite the costs of each solution, Congress or the Court should adopt any of them or whether there is some other alternative. In fact, there are two alternatives. Recharacterizing interpleader as an in rem proceeding to fit it within the Anti-Injunction Act is possible, though not the best answer because it would require extended judicial effort to refine the courts\u27 jurisdictional treatment of in rem proceedings generally. This approach is anything but simple and easy to implement. The more elegant option is for Congress explicitly to authorize injunctions against state proceedings in rule interpleader actions, and Part IV offers language that does so

Can You Hear Me Now? : Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court\u27s Fourth Amendment Jurisprudence

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court\u27s articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court\u27s reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend\u27s observation, the Court\u27s method has united these cases under a single analytical rubric. Part III discusses the unavoidable implication of the Court\u27s approach, and Part IV examines whether there is a principled way out of the dilemma that the Court\u27s reasoning has created. It concludes that there is, but the solution requires recognizing two unstated assumptions that undergird the Court\u27s jurisprudence in this area, assumptions that, when exposed to light, are highly questionable. The Court needs to reconsider how expectations of privacy really work. It has tended to view expectation of privacy as an all-or-nothing proposition, so that for Fourth Amendment purposes, lack of a reasonable expectation of privacy with respect to one person connotes that there cannot be a reasonable expectation with respect to anyone else. The Article suggests that this approach does not reflect the way that either those who wrote and ratified the Fourth Amendment or the majority of Americans today think about privacy. The Supreme Court should recognize, therefore, that when the government employs false friends to gather evidence for use in a criminal case, it does no more than to undertake a search with other eyes and ears and a seizure with other hands. It is a government intrusion all the same. Accordingly, the Fourth Amendment\u27s warrant requirement, which demands probable cause and the acquiescence of a neutral magistrate in the proposed search, should apply in full force

We the People : John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action

The Article is presented in three Parts. Part I documents the enormous effect that Locke\u27s political philosophy had on the Constitution\u27s Framers and traces the idea of collective rights through Locke\u27s Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court\u27s current doctrine in a society founded on the ideas of John Locke. It then explores the constitutional provisions where collective rights have already been recognized by the courts, though not with respect to standing analysis. Finally, Part III proposes a revision of the current test for standing to ensure that vindication of society\u27s collective rights is possible without creating universal standing and thus threatening the courts with a tidal wave of litigation brought by “officious intermeddlers.

The Right of the People : Reconciling Collective and Individual Interests Under the Fourth Amendment

Professor Doernberg examines a tension within fourth amendment jurisprudence and sugqests a means of resolving it. On the one hand, the Supreme Court has conferred fourth amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court\u27s view, it would serve as an effective deterrent. Professor Doernberg traces these two po1icies to different conceptions of the fourth amendment: the first interprets the amendment as a guarantor of individual rights; the second construes it as an instrument for securing a collective right. He then shows how the Court, by oscillating between these two conceptions, has eroded fourth amendment protections more severely than it could have done under either conception. The author suggests that the atomistic and collectice views of the fourth amendment be harmonized and sets forth a view of the proper scope of standing to invoke the exclusionary remedy under a dualistic conception of fourth amendment rights

There\u27s No Reason For It; It\u27s Just Our Policy: The Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction

This Article is presented in three parts. Section I traces the statutory and case development of federal question jurisdiction, both under the constitutional and statutory “arising under”\u27 language. Section II demonstrates the problems that the Mottley rule has caused in building a rational system of federal question jurisdiction, particularly in cases seeking declaratory judgments. Section III contends that the Mottley rule is irrational because it is a mechanical rule that ignores important policy considerations underlying the existence of federal question jurisdiction. Section III goes on to suggest that federal question jurisdiction should depend upon the centrality of the federal issue to the litigation and the importance of federal, rather than state, resolution of the issue. Finally, section III urges that federal jurisdiction ought to exist when a plaintiff anticipates a federal defense, and that either party ought to be permitted to remove a case from state to federal court when any of the pleadings raises a pivotal federal issue. Only in this manner can the purposes underlying federal question jurisdiction be served consistently

The Unseen Track of Erie Railroad: Why History and Jurisprudence Suggest a More Straightforward Form of Erie Analysis

This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in the terms the Supreme Court has used, from Erie to Gasperini v. Center for Humanities, Inc., the Court\u27s most recent full-blown Erie effort. Part IV proposes a different way of doing Erie analysis, one that is consistent with the Court\u27s results in Erie cases but more coherent and easier to understand. Part IV also examines the approach to the Erie doctrine that some well-known scholars have adopted. It argues that the Erie doctrine concerns a choice-of-law problem that is subject to successful analysis using a governmental-interest approach of the type now common in conflict of laws. To be sure, the balancing of interests differs in Erie situations because the Supremacy Clause is a constitutional thumb on the scales, but one that ends up making the inquiry easier, not harder

Resoling International Shoe

Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman sharply restricted general jurisdiction over corporations, limiting it to a corporation’s (1) state of incorporation, (2) state of principal place of business, or (3) another state where the corporation is “essentially at home.” The Court analogized the first two categories to an individual’s domicile. The Court made clear that the third category is very small, leading Justice Sotomayor, in her opinion concurring in the judgment, to charge that the Court had made many corporations “too big for general jurisdiction.” It is noteworthy that although the Court used the term “essentially at home” in both Goodyear and Daimler, it pointedly did not define it. It would have been easy for the Court to say, for example, that a corporation is subject to general jurisdiction only in the state of incorporation or the state in which its principal place of business is — i.e. the diversity jurisdiction reference points for corporate citizenship. But the Court did not say that, so “essentially at home” must mean something beyond the diversity referents. Justice Ginsburg, who wrote both opinions for the Court, is a former Civil Procedure; the possible link to the diversity referents could not have escaped her. This article argues that the Court’s new approach to general jurisdiction over corporations, particularly with Daimler’s addition of the concept of “relative contacts” — comparing the defendant’s forum contacts with the defendant’s worldwide contacts to determine whether the corporation is “essentially at home” — should compel the Court to reexamine and disapprove transient jurisdiction over individuals, limiting general jurisdiction over individuals to forums where they are domiciled or are “essentially at home,” whatever that may mean. One otherwise confronts the dissonance that general jurisdiction exists over an individual who has been in the forum for five minutes — opening the individual’s entire life to forum judicial adjudication — but not over a corporation that has operated in the forum for decades, has extensive physical facilities and numerous permanent employees in the forum, and derives tens of millions of dollars of annual profit from the forum is not. International Shoe’s minimum-contacts approach, if the Court purports to remain faithful to it, cannot simultaneously embrace Goodyear, Daimler, and Burnham v. Superior Court, which unanimously upheld transient jurisdiction over individuals

Due Process Versus Data Processing: An Analysis of Computerized Criminal History Information Systems

Based on their empirical study of New York\u27s computerized criminal history information system and on their national surveys of similar systems, Professors Doernberg and Zeigler conclude that current regulations governing the dispersion of criminal history information are grossly inadequate. Although information drawn from computerized criminal history files is often inaccurate, incomplete, or inappropriate, that information is routinely used by criminal justice officials and judges to make decisions affecting defendants\u27liberty. The authors argue that this practice is unconstitutional and suggest ways to regulate criminal history information suystems that would protect a defendant\u27s right not to be deprived of liberty without due process of law

Horton the Elephant Interprets the Federal Rules of Civil Procedure: How the Federal Courts Sometimes Do and Always Should Understand Them

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal Rule was substantive. Because those justices forgot the lesson of Hanna v. Plumer, the seminal 1965 REA case, their approach introduced new uncertainties to an area that had been clearer--which was a mistake. The Court\u27s approach to Federal Rules problems from Hanna, in 1965, until Shady Grove, in 2010, is preferable. It provides a historically justifiable bright-line test for how to read a Federal Rule--as concerning only matters to which the Rule directly speaks. This Article proceeds in four further Parts. Part II briefly summarizes the Erie doctrine and canvasses the Court\u27s approach to the Federal Rules from 1938, when they took effect, to 1965, when the Court decided Hanna. Part III takes a close look at Hanna, which declared that a Federal Rule must speak with read-my-lips clarity to apply to an issue. Hanna did not say that federal courts may read a Rule for more than appears on its face, and Walker v. Armco Steel Co. continued that approach. Part III also discusses the implications of the Hanna analysis and subsequent cases that have applied Hanna\u27s approach. Part IV briefly canvasses the opinions in Shady Grove with respect to the two approaches to REA questions. Part V argues that the Hanna-Walker line of cases exemplifies the proper method of inquiry under the REA and that REA questions need not be as hard as the Court, particularly in Shady Grove, has made them look