Search for: "Samuel Bray"
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7 Nov 2024, 1:06 pm
If you have been following the debate about universal or nationwide remedies, you know that a lot of attention is currently being paid to the Administrative Procedure Act and vacatur. One of the most recent articles on this question is The Truth of Erasure: Universal Remedies for Universal Agency Actions, by T. Elliot Gaiser, Mathura Sridharan, and Nicholas Cordova. I have just published an analysis and response at Notice & Comment, the blog of the Yale Journal of Regulation, and you can read it… [read post]
29 Jul 2024, 8:35 am
I found myself disagreeing with some of the points made in co-blogger Josh Blackman's post this morning entitled "I could carve a judge with more backbone out of a banana." Instead of a point-by-point rebuttal, here is a set of more general observations: Law is not like the game of Risk, a game of global domination. No legal principle will yield you all the results you want, and principled judging will never yield total domination for any political party or ideology. Anyone who… [read post]
20 Apr 2024, 9:35 pm
On Monday, the Supreme Court will hear argument in an Eighth Amendment case, City of Grants Pass, Oregon v. Johnson. One thing I will be watching for is whether the justices in their questions treat "cruel and unusual" as two separate requirements, or as one. Here are a few paragraphs from "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution: Read as a hendiadys, "cruel and unusual" would mean "unusually cruel." If… [read post]
24 Oct 2024, 5:45 am
Chief Justice Marshall: It is also objected that some of the Defendants in error do not show a complete legal title under Terrell and Hawkins, for which reason they have not entitled themselves to a conveyance from Charles Simms; and that one of them, John Meiggs, has obtained a decree for 140 acres of land, although in the bill he claimed only 100 acres. Regularly the Claimants who have only an equitable title ought to make those whose title they assert, as well as the person from whom they claim a… [read post]
18 Sep 2023, 12:15 pm
Here's a paragraph from a soon-to-be published chapter on the "equity will not" doctrines–doctrines like equity will not enjoin a crime, equity will not enjoin a criminal proceeding, equity will not punish, equity will not enjoin a libel, and equity will not protect a political right. Equity has always been controversial. In the United States, it was controversial at the Founding, at the time of the labor injunctions, at the time of the civil rights structural injunctions, and… [read post]
12 Aug 2022, 6:30 am
"All law is a compromise between past and present, between tradition and convenience. Hence pure analysis, since it deals with the present only, can never fully explain any legal system." -- James Bryce, Studies in History and Jurisprudence, vol. 2, at 616 (1901). The post Past and Present appeared first on Reason.com. [read post]
14 May 2018, 6:44 am
The aspiration of the Federal Rules of Civil Procedure is to have a single uniform procedure for every kind of case. As others have noted, including Alexandra Lahav and David Marcus, there is increasing pressure for procedural specialization, for having different kinds of procedures for different kinds of cases. If this question interests you--or you've ever wondered about the forms of action and why we've gotten rid of them (if we have)--you might enjoy "The Parable of the… [read post]
29 Oct 2024, 11:00 am
s King's Bench Jurisdiction” Author: Benjamin Pontz, Harvard Law School Respondent: Samuel [read post]
13 Dec 2022, 7:37 pm
The Supreme Court has had many cases on equity over the last three decades, but it is Grupo Mexicano that is perhaps the leading case to connect the equity jurisdiction of the federal courts to the historic jurisdiction of the Court of Chancery. In a forthcoming article called "Debs and the Federal Equity Jurisdiction," Professor Aditya Bamzai and I include a footnote that shows that Grupo Mexicano is not an outlier. In the text, we say: As the Supreme Court has consistently… [read post]
5 Aug 2022, 9:24 am
An interesting line from Blackstone's letters: "Precedents are Laws interpreted by Usage; & if there has been no Interpretation, we must resort to the Law itself." "Letter 18. To Randle Wilbraham, 9 January 1753 [draft]," in The Letters of Sir William Blackstone 1744–1780, at 26 (W. R. Prest ed. 2006) (Selden Society Supplementary Series vol. 14). The post Blackstone on precedent and interpretation appeared first on Reason.com. [read post]
27 Jul 2024, 4:34 pm
It [i.e., the Supreme Court] must look to the Constitution, be it with a large or small C, written or unwritten (or both), for it is the constitution of a society which represents the fundamental allocation of competences within that society. It is in its constitution that a society comes to terms with the homely truth that every decision must finally be taken on the managerial, prudential, particularistic judgment of somebody, and yet very few decisions indeed may be left to the judgment of… [read post]
25 Apr 2018, 8:37 pm
Marty Lederman has a very interesting post at Balkinization on national injunctions. Setting aside the constitutional and statutory problems with the national injunction, he asks the following question: "But if courts of equity do have the power to impose more systemic, 'global' injunctions—with the prospect of Supreme Court affirmance or reversal within sight—why would anyone think that thousands of lawsuits, and countless different resolutions, is an optimal state of… [read post]
7 Mar 2024, 6:08 am
A striking characteristic of last month's oral arguments in the content-moderation cases was the uncertainty about facts. In Moody v. NetChoice and NetChoice v. Paxton, it was really unclear what the effect of the laws would be in practice. Which businesses and business models would be affected, and how—all of this was unclear, or at least it seemed so in the oral argument. (I will confess to not having followed the briefs in the cases.) And that lack of clarity affects the substantive… [read post]
17 Feb 2024, 4:45 pm
I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia: I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But they make it as judges make it, which is to say as though they were "finding" it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. James B. Beam Distilling Co. v.… [read post]
12 Jul 2022, 12:18 pm
Last week I was driving and saw a sign that said "Speed Limit 20 MPH When Children Present." I was driving between 30 and 35 mph, which was fine unless the lower speed limit was in play. But was it? I looked ahead on both sides of the street and saw no children. But there were children in my car! Were children "present"? I think this illustrates two different approaches to the mischief rule. This is the classic rule of statutory interpretation that directs interpreters to… [read post]
18 Apr 2022, 8:45 pm
Compare Bray, supra, at 438 n.121; and John Harrison, Section 706 of the Administrative Procedure Act [read post]
1 Dec 2021, 8:22 pm
My colleague Rick Garnett passed along these thoughts on Dobbs, which I'm posting with his permission. --- The oral arguments, at the Supreme Court, in the Dobbs case, made me think about my old boss, Chief Justice William Rehnquist. He was the Supreme Court's junior member when Roe v. Wade was decided—and, two decades later, the Chief Justice when Roe's "essential holding" was salvaged in Planned Parenthood v. Casey. His role differed in those cases, but his position… [read post]
18 Nov 2021, 7:40 pm
My good friend Nathan Chapman passed along these thoughts on Ramirez, which I'm posting with his permission. --- John Henry Ramirez was convicted of murder and sentenced to death by a Texas court in 2008 for killing Pablo Castro. Ramirez now argues that he has a right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment to have his pastor audibly pray and "lay his hands" on him while he dies. The Supreme Court is considering whether… [read post]
25 Aug 2018, 4:20 pm
The scope of the civil jury trial rightThe Seventh Amendment preserves the jury trial right in suits at common law. But what does that mean? It's a famously difficult question. One reason is that the amendment compels us to use a historical category like "Suits at common law" even though the Federal Rules merged the procedures of law and equity. What is a "Suit at common law" today? I have a new draft article on this problem, "Equity and the Seventh Amendment." I… [read post]
