No Final Victories: The Incompleteness of Equity’s Triumph in Federal Public Law

Prominent areas in which the US Supreme Court has denied equitable relief are examined, demonstrating the limited nature of equity\u27s triumph in federal public law. The rationale behind the trend away from equity in such decisions is discussed

Exhuming the “Diversity Explanation” of the Eleventh Amendment

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of current doctrine, and concludes that overruling of that doctrine would be warranted

Consent and the Roots of Judicial Authority: The Constitutional Writings of Archibald Cox (Book Review)

Reviewing A. Cox, The Role of the Supreme Court in American Governmen

“Inextricably Intertwined” Explicable at Last?: Rooker-Feldman Analysis After the Supreme Court’s Exxon Mobil Decision

The Supreme Court\u27s March 2005 decision in \u27Exxon Mobil Corp. v. Saudi Basic Industries Corp.\u27 substantially limited the Rooker-Feldman doctrine, under which lower federal courts largely lack jurisdiction to engage in what amounts to de facto review of state-court decisions. Exxon Mobil\u27s holding is quite narrow--entry of a final state-court judgment does not destroy federal-court jurisdiction already acquired over parallel litigation. But the Court\u27s articulation of when Rooker-Feldman applies, and its approach in deciding the case, have significant implications for several aspects of Rooker-Feldman jurisprudence. Chief among our claims is that although the Court did not expressly repudiate or limit the applicability of the inextricably intertwined formulation from prior cases, which had been a primary test for many lower courts, that concept appears to have been relegated to some secondary role and no longer to be a general or threshold test. The Exxon Mobil Court properly did not elaborate on just what the concept\u27s role should be, but we offer a suggestion based on an earlier Ninth Circuit decision. We also discuss the apparent impact of Exxon Mobil on other aspects of Rooker-Feldman doctrine as the lower federal courts had developed it, including relation to preclusion doctrines, the significance of whether the federal plaintiff was plaintiff or defendant in state court, and the doctrine\u27s applicability a) to those not parties to prior state-court litigation, b) to interlocutory state-court rulings and decisions of lower state courts, and c) when federal-court plaintiffs did not raise their federal claims in state court. A February 2006 per curiam decision applying Exxon Mobil, Lance v. Dennis, reinforces the Court\u27s position on some of these issues

Authorized Managerialism Under the Federal Rules— and the Extent of Convergence With Civil-Law Judging

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the adversarial model of the judge as passive referee and makes us more like supposedly inquisitorial civil-law systems. To the extent that civil-law judges generally exercise considerable initiative and control in shaping the course of civil proceedings (which they appear to do in some civil-law systems but less so or very little in others), greater managerialism in America does appear to bring about a significant degree of convergence. And greater promotion of settlement and alternative dispute resolution by American managerial judges also seems to bring us closer to practice in at least some prominent civil-law systems. But a defining feature of systems that truly deserve the label inquisitorial is judicial primacy in fact-gathering, found in some--but again, not all--civil-law systems. On this measure American managerialism largely does not put the judge in that role, so that statements appearing to see our managerialism as converging with inquisitorial systems are correct only to the extent that our practices may be becoming somewhat more like the non-inquisitorial aspects of civil-law judging. Nor should the label inquisitorial obscure the very considerable extent of party control that exists in civil-law as well as adversarial common-law systems. And, of course, much American pretrial managerialism is about discovery, of which civil-law systems (and other common-law ones as well) have considerably less than we do. The convergence effected by greater American pretrial managerialism thus is significant, but in limited respects, and needs to be addressed with precision. In particular, comparisons should avoid implying that we are yet in any major way moving toward the model of judge as truly inquisitorial investigator with lead responsibility for ferreting out the facts relevant to the parties\u27 dispute