Browsing by Author "Casto, William R."
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Item Additional Light on the Origins of Federal Admiralty Jurisdiction(Journal of Maritime Law and Commerce, 2000) Casto, William R.Professor Casto returns once again to the origins of federal admiralty jurisdiction. Using an essay by Peter Stephen Du Ponceau as support, Professor Casto forcefully argues that to understand the Founders’ attitudes towards admiralty litigation, one must approach the topic as a public-litigation paradigm as opposed to the modern private-litigation paradigm. He also responds to Professor Jonathan M. Gutoff’s of the public-litigation thesis.Item Advising Presidents: Robert Jackson and the Destroyers-For-Bases Deal(American Journal of Legal History, 2012) Casto, William R.In recent years, the process of providing legal advice at the highest levels of government has sparked significant controversies. The present article uses advice given to President Franklin Roosevelt by Attorney General Robert Jackson, later Justice Jackson, to explore this advisory process. There is no comparable, in-depth study of the relationship between any president and the president's legal advisors. The United States was a neutral country in the summer of 1940, and Great Britain stood alone against a triumphant Nazi Germany. President Roosevelt transferred fifty American destroyers to the British in their hour of need, and the president relied in part upon Jackson's formal written advice that the transfer would be lawful. This episode, which involved a respected president and a respected attorney general, provides an invaluable laboratory for exploring the advisory process. Discussions of legal advice given to presidents over the last decade are inevitably distorted by rancorous partisanship. In contrast, Attorney General Jackson's advice is distant in time and relatively uncontroversial. Today, everyone agrees that the substantive policy of supporting Great Britain against Nazi Germany was the right policy. Based upon an in-depth study of Jackson’s conduct, the present article concludes that the traditional principles of professional responsibility provide an inadequate basis for understanding the relationship between a president and his legal advisors.Item The ATS Cause of Action is Sui Generis(2014) Casto, William R.The Kiobel v. Royal Dutch Petroleum Co. decision by the U.S. Supreme Court leaves the federal courts with the decision of whether any significant aspect of the common law tort for violations of international law will survive. The Alien Tort Statute (ATS) is a subject matter jurisdiction statute and does not create a statutory cause of action. The topics covered in this article include; subject matter jurisdiction distinctions; the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.; and situations which justify an extraterritorial remedy.Item Barr v. Mateo and the Problem of Coequal Protection for State and Federal Officials(1977) Casto, William R.This article discusses the development and disparity of judicial application of immunity to state and federal officials, as well as administrative officials. The article focuses discussion in the realm of section 1983 claims. The author supports the view that state officials should be afforded the same form of immunity as their federal counterparts. The author provides evidence to support his belief that the Barr v. Mateo Supreme Court decision is now an exception to a general rule of qualified immunity for administrative officials. The author also discusses the view that federal and state officials should have coequal immunity protection and argues that it is no longer valid for Barr v. Mateo to provide all federal officials with absolute immunity.Item Book Review of Maeva Marcus' The Documentary History of the Supreme Court of the United States, 1789-1800, Vol. 6: Cases, 1790-1795(American Journal of Legal History, 2000) Casto, William R.Professor Casto reviews Maeva Marcus's sixth volume of The Documentary History of the Supreme Court.Item Book Review of Stanley Elkins and Eric McKitrick's "The Age of Federalism"(American Journal of Legal History, 1995) Casto, William R.Professor Casto reviews The Age of Federalism by Stanley Elkins and Eric McKitrick.Item Correspondence(1989) Casto, William R.In this letter to the editor, Professor Casto analyzes the First Congress’s possible reasoning in passing the Alien Tort Statute. Professor Casto focuses his historical examination on Senator Oliver Ellsworth, who drafted the statute. Professor Casto explains how Ellsworth’s Calvinism affected his view on the law of nations and his draft of the Alien Tort Statute. Then, Professor Casto addresses the jurisdictional issues related to the Alien Tort Statute that remain at issue today.Item 'Dear Sister Antillico...': The Story of Kirksey V. Kirksey(Georgetown Law Journal, 2006) Casto, William R.Notwithstanding the surprising paucity of judicial citations, Kirksey truly is a famous case. Most first-year students and all contracts professors know the case's story of personal tragedy, good intentions gone awry, intrafamilial squabbling, and a broken promise. Kirksey is famous because it is a great teaching case - especially for first-semester students. Although the case seems straightforward and even simple, many ambiguities and puzzles lie beneath its still surface. Professors Casto and Ricks resolve these ambiguities and solve these puzzles and allow readers insight into one of the more famous cases in U.S. legal instruction history.Item Early Supreme Court Justices' Most Significant Opinion(Ohio Northern University Law Review, 2002) Casto, William R.The early Supreme Court Justices decided many cases before Marbury v. Madison, but only one of their earlier opinions has enduring significance. In 1793, President George Washington and his Cabinet were embroiled in the first serious foreign affairs crisis under the Constitution and desperately needed legal advice on a number of complex legal issues. The President formally asked the Supreme Court for advice, and the Justices responded with a written opinion declining to help. Today, more than two hundred years later, the Justices' opinion is generally considered as the source of an absolute rule that federal courts may not render advisory opinions. In a leading case, the Supreme Court explained that the "rule against advisory opinions was established as early as 1793," and the Court cited the Justices' refusal for this proposition. The present article tells the story of the Justices' refusal to advise President Washington and suggests the story's relevance to modern practice.Item Erie Doctrine and the Structure of Constitutional Revolutions(Tulane Law Review, 1988) Casto, William R.Legal positivism has been one of the more influential ideas in the history of American law. The general acceptance of positivism in this century virtually dictated the overruling of Swift v. Tyson and the creation of the Erie doctrines in 1938. Under Swift and before Erie R.R. v. Tompkins, judges were considered the living oracles of a preexisting natural law. Erie, however, signaled an intellectual revolution that pictured judges as lawmakers in a relativistic legal world. This essay is about the nature of this shift in ideology and what it suggests more broadly about how constitutional law is made.Item Executive Advisory Opinions and the Practice of Judicial Deference in Foreign Affairs Cases(George Washington Law Review, 2005) Casto, William R.During the first decade under the U.S. Constitution, Supreme Court justices frequently provided the president and the executive branch with independent legal advice on a wide range of issues. Nevertheless, in 1793 when President Washington sought advice from the justices regarding the impact of the wars of the French Revolution on U.S. neutrality, the justices refused to give such advice. Their refusal has come to be viewed as the origin of today's strict and well-established rule that the federal courts may not provide the executive branch with advisory opinions. Following the justices' refusal to advise him, the president turned to his cabinet for advice; and so it is today. Presidents seeking legal advice look within the executive branch. This Essay examines a unique aspect of the attorney advisory function to the field of foreign affairs. As a practical matter, the restriction of the advisory function to the executive branch has resulted in a significant expansion of presidential power under the Constitution.Item The Federal Courts' Protective Jurisdiction Over Torts Committed in Violation of The Law of Nations(Connecticut Law Review, 1986) Casto, William R.The thesis of this article is that section 1350 (of the Judicial Code) should be construed as liberally as possible. Although there is no need to limit Alien Tort Claim litigation, a liberal construction of section 1350 would not impede the development of appropriate limits. Cases falling within a broad reading of the statute could nevertheless be dismissed on the basis of the act of state doctrine or other grounds. In Part II of this article, the problem of rules of decision under international law, United States domestic law, and foreign domestic law is addressed. Part III then examines the legislative history of the Alien Tort Claim Act and demonstrates that the language, purpose, and general eighteenth century background of the Act all suggest a liberal construction. Part IV of the article considers the pertinent constitutional provisions and policy considerations. The article concludes that section 1350 vests the district courts with the fullest jurisdiction authorized by the Constitution, thereby providing the means by which to obtain a uniform national approach to section 1350 litigation.Item The First Congress's Understanding of Its Authority Over The Federal Courts' Jurisdiction(Boston College Law Review, 1985) Casto, William R.This note discusses the historical basis for congressional control of federal court jurisdiction. Professor Casto considers the system of federal courts created by the first Congress, giving special emphasis to the private and public papers of Oliver Ellsworth and William Paterson, the principal drafters of the Judiciary Act of 1789. Casto introduces the leitmotif of the note in the first section, arguing that the historical evidence demonstrates a general acceptance of extensive congressional control over federal court jurisdiction; Casto points out that his view is the traditional view. In section two, Casto discusses the theses of two scholars challenging the traditionally accepted view. Casto rejects both theses, and the remainder of the note explains why. Casto argues the enactment of the Judiciary Act of 1789, notes from the House and Senate debates, and the papers of the individuals who participated in these events, simply cannot be reconciled with a historical thesis that the Constitution requires the federal courts to be vested with the complete judicial power of the United States as defined in the Constitution. Section three provides a detailed analysis of the Judiciary Act itself. In section four, Casto concludes that the pertinent historical evidence indicates that the framers understood the Constitution to grant Congress extensive legislative discretion over the jurisdiction of the federal courts.Item Foreign Affairs Crises and the Constitution's Case or Controversy Limitation: Notes from the Founding Era(2004) Casto, William R.In theory the federal courts might play a significant role in formulating foreign policy and in resolving disputes related to foreign policy, but from the earliest days of the Republic, they seldom have. Instead federal judges have always played a comparatively minor role in the arena of foreign policy. This essay examines two high-profile foreign policy cases that the Federal District Court in Philadelphia adjudicated some two hundred years ago. The resolution of these two cases teaches enduring lessons about the federal courts' structural ability to render timely and useful legal advice related to controversial foreign affairs issues.Item Government Liability for Constitutional Torts: Proposals to Amend the Federal Torts Claims Act(1982) Casto, William R.The author of this article recommends amending the Federal Tort Claims Act through enactment of House Resolution 24, introduced by the 97th Congress in 1981. The author also recommends restructuring section 1983. The author explains that these changes are necessary in order to resolve the disparate treatment federal, state, and local governments receive in constitutional tort liability situations. (The following paragraph is taken from the Introduction of the Article): First, we will review the current tort liability of the United States and its officers. Then we will consider H.R. 24, including the concept of constitutional torts and the bill’s different treatment of ordinary and constitutional torts, the scope of the United States’ liability under the bill, provisions of administrative disciplinary proceedings, and the constitutionality of the enactment of the bill. Finally, because liability of state and local governments and officials under section 1983 should be reconsidered if H.R. 24 or a similar bill is enacted, some ideas for harmonizing H.R. 24 and section 1983 will be suggested. A detailed analysis of section 1983, including proposals for amending that statute, however, is beyond the scope of this Article.Item If Men Were Angels(Harvard Journal of Law and Public Policy, 2012) Casto, William R.This article reviews Scott Gerber’s A Distinct Judicial Power, a wonderful exploration of the separation of powers and an independent judiciary.Item Innovations in the Defense of Official Immunity Under Section 1983(1979) Casto, William R.This article studies the concept of immunity as it relates to section 1983 claims. The article begins with an explanation of the various forms of immunity that affect section 1983 claims. The author provides the Supreme Court’s historical development of official immunity through a discussion of numerous cases. The author then provides a detailed analysis of qualified immunity and absolute immunity. In this analysis, the author evaluates the judiciary’s reasoning behind providing some actions absolute immunity while giving other actions only qualified immunity status. The author follows this discussion with a critique of the official immunity rule and whether this rule can be improved upon. The article includes a brief discussion of the liability of government employers before concluding.Item James Iredell and the American Origins of Judicial Law Review(Connecticut Law Review, 1995) Casto, William R.Professor Casto provides a look at the earlier writings of James Iredell. Especially fascinating is that Iredell developed his ideas in the 1780s without the assistance of pre-existing analyses of judicial review. His ideas accurately foreshadowed virtually all subsequent judicial discussions of the issue in the early Republic. No justice of the Supreme Court -including Chief Justice Marshall - has ever addressed the issue in a more comprehensive and sophisticated fashion. Iredell's explanation and justification also virtually dictated the fundamental rule of judicial interpretation that the early justices used in gauging the constitutionality of legislation.Item Legal Positivism and the Documentary History of the Supreme Court(2008) Casto, William R.Legal Positivism and the Documentary History of the Supreme Court provides an overview of the Documentary History of the Supreme Court of the United States (Documentary History), a set of materials that provide a comprehensive overview of the early Supreme Court, including Supreme Court decisions. This article explains that, although Documentary History is an invaluable resource, it does have its limitations. One such limitation is what the author describes as legal positivism, a guiding philosophy that emphasizes the socially constructed nature of the law. The author explains in detail how the philosophy of legal positivism, which he argues most modern lawyers adhere to, has influenced Documentary History.Item The New Federal Common Law of Tort Remedies for Violations of International Law(2006) Casto, William R.This essay is an analytical roadmap for future ATS litigation rather than a comprehensive analysis of all issues that may arise. A comprehensive analysis would require a book-length treatment or a series of lengthy law review articles. Rather than embarking upon an exhaustive-treatment of all past and future ATS litigation, this essay provides an overview of the Sosa v. Alvarez-Machain decisions’ guidelines and suggests an approach to understanding the interrelationships among federal statutory law, federal common law, and international law in ATS litigation.