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The modification of decrees in the original jurisdiction of the Supreme Court.

V. LOCATING "GENERAL PRINCIPLES OF FINALITY AND REPOSE": FROM LORD BACON TO RUFO

The data described in Part IV indicate that the Court does not actually apply principles of res judicata consistently and uniformly. Moreover, as the case studies in Part III suggest, this may be a good thing: the Court often has good reasons for revisiting its judgments. In search of a superior standard for modifying prior decrees, I trace the history of finality principles and explain what "general principles of finality and repose" should mean in the context of original jurisdiction cases. (101)

A. Finality of Judgments: The Flexibility of Equity

For centuries, courts have tried to develop standards for when they will reconsider their judgments. (102) The ancient division between law and equity permeates this history. Although law and equity have been nominally merged, the history of modifications in equity courts provides helpful guidance for choosing a principle for decree modification in the original jurisdiction.

Traditionally, at law, English and American judges retained power to modify their judgments until the expiration of the term at which the judgment was entered; (103) thereafter, parties could seek modification only under limited circumstances through a petition for a writ of error coram nobis. (104) In equity, judges similarly retained power to modify a decree until it was "enrolled"; thereafter, a petitioner would need to request a bill of review. (165)

The difference between finality principles at law and in equity is illustrated in the Court's explanation of final judgments and congressional authority to change them. In Plant v. Spendthrift Farm, Inc., (166) the Court held that Congress may not reverse the judiciary's final disposition of a case because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them." (167) A significant corollary to this rule, first articulated in Wheeling & Belmont Bridge, is that Congress does have the authority to change substantive law in a way that forces a court to modify a prospective decree. (168) In other words, although an injunction is "a final judgment for purposes of appeal, it is not the last word of the judicial department." (169) Rather, the issuing court may be called upon to construe or enforce the decree at some time in the future; because of this "continuing supervisory jurisdiction," modifications to the underlying law allow modifications of the decree itself. (170) Therefore, a judgment at law is immune from congressional challenge, but in equity, changes of law can justify decree modifications.

For more than a century, the distinction between law and equity persisted in federal common law. (171) But in 1938, the Federal Rules of Civil Procedure nominally merged law and equity, subsuming the legal writ of error coram nobis and the equitable bill of review into a single "motion for relief from judgment." (172) Nevertheless, the merger did not rob history of its significance. (173) In the district courts, prospective decrees are still subject to modification if enforcement would be inequitable. (174)

B. From Bacon to Horne: Development of the Flexible Test in Equity

Tracing the development of the standard for modifying judgments in cases at equity illuminates the rationale behind the flexible standard that trial courts have adopted and that the Supreme Court should also adopt for its original jurisdiction cases. When the old equity courts were presented with bills of review, they asked two questions: (175) first, whether reconsideration is justified at all; second, if so, whether the court will exercise its equitable discretion in modifying the decree. The first inquiry was more formulaic: a party had to fall into one of several prescribed categories to qualify for a bill of review. (176) The second involved the court's traditional equitable discretion. (177) This Section concentrates on the first step in the analysis: the threshold showing that a party must make in order to convince the court to reconsider its prior weighing of the equities, which varies depending on the finality principle at issue. (178)

As a foundational matter, a court always retains supervisory jurisdiction over a final decree; (179) the defendant remains bound to obey under penalty of contempt. Thus justice requires that the court retain jurisdiction to modify that decree if it becomes inequitable. This intuition dates back to Lord Bacon's ordinances in 1969. (180) Bacon, the Lord Chancellor at the time, considered the same question we consider today: when should the court exercise this jurisdiction to modify a decree? He propounded the following guidelines:
   No decree shall be reversed, altered, or explained, being once
   under the great seal, but upon bill of review: and no bill of
   review shall be admitted, except it contain either [(1)] error in
   law, appearing in the body of the decree without farther
   examination of matters in fact, or [(2)] some new matter which hath
   risen in time after the decree, and not any new proof which might
   have been used when the decree was made: nevertheless [(3)] upon
   new proof, that is come to light after the decree made, and could
   not possibly have been used at the time when the decree passed, a
   bill of review may be grounded by the special license of the court,
   and not otherwise. (180)


Lord Bacon's tripartite test set forth broad categories that are still relevant to courts' decree modification inquiries today.

The first ground, "error in law," is generally left to appeals courts today, but this notion is still reflected in the common-law power of courts to correct their own clerical errors. (182) Another progeny of this category is the idea that courts have inherent power to modify their own decrees to make their terms unambiguous. (183) The third ground for review--newly discovered evidence that was not available at trial--has remained a distinct category. (184)

The second ground, "new matter," is the most capacious and the most contentious. By the middle of the twentieth century, courts recognized two broad types of new matter that could ground an argument for decree modification: changes of law and changes of fact. (185)

Changes of law may require courts to reconsider a decree. (186) For instance, in the Wheeling & Belmont Bridge case, the Supreme Court determined that the erection of a bridge was unlawful and decreed that the bridge must be destroyed. (187) Then Congress specifically blessed the bridge by statute. (188) The defendant asked the Court for release from its obligations under the decree, and the Court acquiesced. (189) This result is not surprising: it is aligned with our separation-of-powers understanding that the political branches should be able to repeal and update our laws without being hemmed in by ossified decrees. This outcome is less obvious when the decree was entered by consent, with no determination of liability. However, the Supreme Court has held that even in such cases, given that bargaining was accomplished in the shadow of the law, the removal of the statute casting that shadow requires reevaluation of the underlying decree. (190)

In addition to changes of law, "new matter" can also arise from changes of fact. (191) Original jurisdiction examples abound--avulsion may have caused an interstate boundary to freeze in place; (192) a new technology may have called into question a court's earlier equitable apportionment of water. (193) When changes in fact happen after the entry of decrees, trial courts consider these changes as possible justifications for reweighing the equities. (194)

In the early twentieth century, the Supreme Court's appellate case law sharply curtailed this approach with what has become known as the "grievous wrong" test. The test was crafted by Justice Cardozo in the 1932 case United States v. Swift & Co., and it set a very high bar: "Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned." (195) Scholars and lower courts gradually pushed back against Swift's stringent requirements. (196) In New York State Association for Retarded Children, Inc. v. Carey, (197) the Second Circuit was confronted with the challenge of applying Swift to an institutional reform case. Judge Friendly found that because of their complexity and longevity, institutional reform decrees would be particularly unmanageable under the "grievous wrong" test. He explained, "The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible." (198)

The Supreme Court was eventually convinced by Judge Friendly's arguments. In Rufo v. Inmates of Suffolk County Jail, the Court described a flexible test for district courts to apply when considering requests for modifications of their decrees. (199) The Court noted that "the 'grievous wrong' language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees." (200) Emphasizing "the need for flexibility in administering consent decrees," (201) the Court noted that "a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen." (202) The Court added that in the time since the Court adopted the "grievous wrong" test, the Federal Rules of Civil Procedure had been adopted, and Rule 60's standard is liberal. (203)

Rufo lists situations in which a change of facts could justify a decree modification: (1) "changes in circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered"; (204) (2) "achieving the goals" of the underlying litigation; (205) and (3) advancing the public interest when decrees affect parties not directly involved in the suit and the public's right to sound operations of institutions. (206) Though dressed up in new verbiage and re-christened as the "flexible approach," (207) the test articulated in Rufo instantiates the second category of "new matter" in Lord Bacon's traditional test.

However, Rufo was not the Supreme Court's last word on the matter. The Supreme Court revisited the issue of decree modifications in Frew v. Hawkins (208) and again in Horne v. Flores (209) The reasoning in these cases addressed decrees in the specific context of institutional reform litigation against state agencies. In Horne, this focus on institutional reform litigation is underscored by the Court's three reasons for applying a particularly flexible test in such cases. (210)

The first of these concerns is the frequency with which changed circumstances occur in institutional reform cases. (211) Of course, changed circumstances can arise in any case involving a permanent injunction, including in the original jurisdiction. But the flexible test of Rufo sufficiently addresses changes of fact and changes of law. The difference in Horne is that the Court added a third type of change that might justify modification: "new policy insights." (212) This subtle shift evinces the Court's true concerns, which it also listed explicitly as the second and third rationales for applying a particularly flexible test to institutional reform cases: these decrees shift power from state legislatures to a single federal judge, raising federalism concerns. (213) Furthermore, they ossify policy, allowing state actors to bind their successors by failing to defend these suits vigorously. (214)

The Horne Court's concerns are not as salient in original jurisdiction cases. Commentators have provided many examples of state actors seeking to bind their successors by acting as "secret plaintiffs" in institutional reform cases. (215) By contrast, original jurisdiction disputes are truly adversarial. State officials do not have political incentives to concede to the opposing state more land or more water than it deserves. Federalism concerns are similarly lacking in original jurisdiction decrees. The original jurisdiction of the Supreme Court is unabashedly federalist. The point of the original jurisdiction, ambassadors aside, is to provide a federal forum for interstate disputes.

Given that worries about collusive state actors and federalism concerns are not present in the original jurisdiction, the rationale of Home does not apply to original jurisdiction cases. Rather, the best reading of Horne is that it changed the test for institutional reform decrees specifically; the better test for decree modifications in original jurisdiction cases is the one articulated in Rufo. (216)

C. The Finality Rule and Its Application in Original Jurisdiction Cases

A synthesis of this case law demonstrates that when deciding whether to modify a decree, a federal court considers essentially the same factors that Lord Bacon announced in 1619. (217) The Court should consider adopting this approach, both to increase doctrinal coherence and to more accurately describe how the Court determines whether to modify its decrees.

Under this traditional approach, which elaborates Lord Bacon's standard, a court asks the following questions: (218) First, is there a clerical error on the face of the decree, or an ambiguity that renders the decree unenforceable as written? Second, has newly discovered evidence arisen that could not have reasonably been discovered in time to move for a new trial? (219) Finally, has a "new matter" arisen since trial that makes continued prospective enforcement of the decree inequitable?

This last question, in turn, is further elaborated under Rufo. To answer the third question, a court would first inquire whether the underlying law has changed or, more commonly in original jurisdiction cases, whether there has been a change in facts that unexpectedly makes compliance (1) substantially more onerous to litigants; (2) detrimental to the public interest; or (3) less effective in vindicating a protected party's rights. (220) If any of these prongs is satisfied, or if the parties consent, then the court would reweigh the equities to determine if a modification is justified. (221)

The Court should explicitly adopt this test for four reasons. First, this test more accurately articulates the finality principle that the Supreme Court should and does apply in the original jurisdiction docket. Second, this test can account for the difference in decree modification rates in different types of cases, as observed in Part IV. Third, it is not a mechanical test, as equity is not a mechanical doctrine. (222) This test provides content to the "general principles of finality and repose" mentioned in Arizona v. California-, it is far more specific than "principles of res judicata"; (223) and it has centuries of history backing it. Finally, unlike res judicata, this test properly balances competing interests in finality and justice.

A few examples illustrate the test's effectiveness.

l. Water Rights

Recall Wisconsin v. Illinois, (224) the Chicago sewage case. The accrual of a large amount of active sludge was a textbook case of "new matter." If the Court had applied the Rufo test, it would have found that there was a change in facts that unexpectedly made compliance substantially more onerous to the defendant, justifying a reweighing of equities. The second decree modification, due to an anomalous drop in the Mississippi River, would have also been justified under the Rufo test: it is a perfect example of unanticipated changed circumstances in which unmodified enforcement of the decree would have been detrimental to the public interest.

Similarly, in Nebraska v. Wyoming, the case involving a new irrigation technology, the Court agreed to reweigh the equities, but did not actually reach that second step before the parties settled. (225) The Court's justification for allowing argument on the reweighing of equities was that there had been a change of facts--the development of this new irrigation technology--that made prospective application of the decree inequitable by making the decree less effective at vindicating the plaintiff's rights. This justification is also consistent with the Rufo articulation of Lord Bacon's standard.

2. Boundary Disputes

In Louisiana v. Mississippi, the Supreme Court entered a decree in 1906 establishing the contested boundary between the two states, including on the Mississippi River. (226) Between 1912 and 1913, the river avulsed. This rapid change in land mass around the river froze the interstate boundary as a matter of law, meaning that the boundary no longer moved with the navigable channel of the Mississippi River. The parties returned to the Court, as the old decree was no longer specific enough to describe the boundary around the area of the avulsion. In other words, under the Rufo test, a change in facts decreased the old decree's efficacy in vindicating the litigants' rights. Therefore reconsidering the prior decree was justified.

In Kansas v. Missouri, the Court was forced to modify a decree because of a change in law. (227) After the full resolution of the case on the merits and the entry of a decree, the litigants reached a compromise that was blessed by Congress pursuant to the Compacts Clause. (228) In accordance with Wheeling & Belmont Bridge, this meant that the old decree could no longer be prospectively enforced. It satisfies the "change of law" branch of the "new matter" prong, so under the above test, the Court should have modified the decree to conform to the interstate compact. This is exactly what the Court did.

Notwithstanding these examples, it is worth noting that these cases -wherein "new matter" warrants a decree modification--are rare among boundary-dispute cases. Intuitively, and especially compared to water rights cases, unforeseeable changes in circumstances that would affect state borders are limited. This explains the low modification rate for boundary-dispute cases noted in Part IV.

3. Federal-State Title Disputes

United States v. California (229) involved a dispute regarding title to the lands underlying certain bays and estuaries extending out into the Pacific Ocean. The Supreme Court articulated a standard and entered a broad decree regarding how the boundary should be drawn, reserving the issue of drawing that boundary with precision. (230) As oil drilling made the boundary question particularly pressing in some areas, the parties returned to the Court, asking for precise lines in those regions. (231) However, Congress then entered the fray, passing the Submerged Lands Act, "vest[ing] in California all the interests that were then thought to be important." (232) The case fell silent.

When drilling technology again improved, so that submerged lands even further off the coast could be drilled, the dispute revived. The Court modified its decree to provide more specificity, but also to incorporate legislative changes--both the Submerged Lands Act itself and, with respect to certain technical issues, changes in the international law on what constituted inland waters. (233) The question of whether to grant a modification in this case was another example of applying the Rufo articulation of Lord Bacon's inquiry -specifically, there had been a change in the underlying substantive law on which the old decree rested.

4. Other Cases

The Rufo standard works also for the wide variety of miscellaneous original jurisdiction cases the Court handles apart from boundaries, water rights, and title disputes. For example, in New Jersey v. City of New York, an interstate nuisance case, New Jersey sued New York City for dumping garbage into the Atlantic, causing it to end up on the shores of New Jersey. (234) New York City's defense was that it had always dumped garbage into the Atlantic. (235) New Jersey prevailed: the Court ordered that New York City construct incinerators for its garbage and cease dumping garbage by a date certain, or else pay a daily fine to New Jersey. (236) New York City, due to financial constraints, did not meet the deadline. (237) The Court awarded damages to New Jersey but modified its decree to set a new date for compliance. (238)

This application for a decree modification, though not discussed using any particular standard, could also have been examined through the Rufo articulation of the "new matter" inquiry. Specifically, the Court could have asked whether there had been a change in facts that unexpectedly made compliance substantially more onerous on the defendant. It is not clear whether that is what was actually done in this case--it occurred during the Great Depression, so perhaps there truly was an unexpected change in New York City's finances. If not, perhaps the modification should not have been granted. Instead, the Court might have found that New York City was violating the decree, albeit not contemptuously, and ordered it to comply by a new date certain or be held in contempt of court. Regardless of what the Court may have done, the inquiry could have been conducted under a relatively transparent, replicable test. Instead, the Court's standard for modification was unspoken and its rationale opaque.

CONCLUSION

The Court's current standard for modifying decrees in original jurisdiction cases, insofar as it has one, confuses litigants more than it guides them and does not reflect the Court's practice. "Principles of res judicata" are not applied in any other context, and res judicata is not a reasonable doctrine to apply to motions for decree modification. Because of the longevity and the shifting equities in many original jurisdiction cases, a more balanced and nuanced test is required.

Instead of reinventing the wheel, the Supreme Court should decide whether to modify its decrees under the same two-step inquiry that has guided courts of equity since the seventeenth century. This standard would properly channel the Court's discretion, without being excessively restrictive (like principles of res judicata) or excessively directionless (like law of the case). By explicitly adopting such a test, the Court would bring clarity to its decisionmaking process and guide litigants as they navigate the rarely travelled path of the original jurisdiction of the Supreme Court.
APPENDIX A: OUTCOMES OF ALL ORIGINAL JURISDICTION CASES
BY CATEGORY

                                            Dismissed
                                           (Including     Unknown, or
Category                         Denied    Withdrawn)    Long Inactive

Boundaries                         1            3              4

Federalism (240)                   19           5              1

Water Rights (241)                 2            5              0

Federal-State Tide Disputes        0            5              0

Taxes                              10           1              0

Purported Original                 12           3              0
Jurisdiction Cases (242)

Constitutionality of State         8            1              0
Laws (243)

Nuisance                           3            3              0

Corporate Activities               3            5              0
(Liquidations, Mergers, etc.)

Riparian Rights &                  2            0              0
Obstruction of Waterways

Miscellaneous (Replevin,           4            1              0
Tort, Procedure, etc.)

Unknown Controversy                2            2              3

Contracts                          4            1              0

Bonds                              0            1              0

State-Citizen Tide                 0            3              0
Disputes (244)

Escheat of Unclaimed               0            0              1
Property

Criminal Law (Extradition,         3            0              0
Death Penalty)

State-Citizen Debt                 0            1              1
Disputes (245)

Ambassador, Public Minister,       0            0              0
& Consul Cases

Total                              73          39             10

                                                             Merits
                                             Temporary     (No Decree)
Category                        Ongoing     Relief Only       (239)

Boundaries                         0             0              7

Federalism (240)                   0             0              8

Water Rights (241)                 5             0              5

Federal-State Tide Disputes        0             0              4

Taxes                              0             1              2

Purported Original                 0             0              0
Jurisdiction Cases (242)

Constitutionality of State         1             1              1
Laws (243)

Nuisance                           0             0              2

Corporate Activities               0             0              1
(Liquidations, Mergers, etc.)

Riparian Rights &                  0             0              3
Obstruction of Waterways

Miscellaneous (Replevin,           0             0              2
Tort, Procedure, etc.)

Unknown Controversy                0             0              0

Contracts                          1             0              0

Bonds                              0             0              3

State-Citizen Tide                 0             0              2
Disputes (244)

Escheat of Unclaimed               0             0              1
Property

Criminal Law (Extradition,         0             0              1
Death Penalty)

State-Citizen Debt                 0             0              1
Disputes (245)

Ambassador, Public Minister,       0             0              2
& Consul Cases

Total                              7             2             45

                                Decree:
                                 Never       Decree:
Category                        Modified    Modified         Total

Boundaries                         38           4             57

Federalism (240)                   0            0             33

Water Rights (241)                 3           12             32

Federal-State Tide Disputes        8            8             25

Taxes                              2            0             16

Purported Original                 0            0             15
Jurisdiction Cases (242)

Constitutionality of State         1            0             13
Laws (243)

Nuisance                           0            2             10

Corporate Activities               0            0              9
(Liquidations, Mergers, etc.)

Riparian Rights &                  2            1              8
Obstruction of Waterways

Miscellaneous (Replevin,           1            0              8
Tort, Procedure, etc.)

Unknown Controversy                0            0              7

Contracts                          1            0              7

Bonds                              0            1              5

State-Citizen Tide                 0            0              5
Disputes (244)

Escheat of Unclaimed               2            0              4
Property

Criminal Law (Extradition,         0            0              4
Death Penalty)

State-Citizen Debt                 1            0              3
Disputes (245)

Ambassador, Public Minister,       0            0              2
& Consul Cases

Total                              59          28             263


APPENDIX B: ACTIVITY IN ORIGINAL JURISDICTION CASES FROM APRIL 25, 1993 THROUGH DECEMBER 31, 2015

New Cases

Nebraska v. Colorado, No. 144, Orig.

Suit to enjoin an article in the Colorado Constitution legalizing marijuana as unconstitutional under the Supremacy Clause.

* 135 S. Ct. 2070 (2015) (call for the views of the Solicitor General on behalf of the United States (CVSG))

Mississippi v. Tennessee, No. 143, Orig. Suit to enjoin allegedly intentional pumping of intrastate groundwater from within Mississippi sandstone, and for damages.

* 135 S. Ct. 425 (2014) (CVSG)

* 135 S. Ct. 2916 (2015) (motion for leave to file a bill of complaint granted)

* 136 S. Ct. 499 (2015) (special master appointed)

Florida v. Georgia, No. 142, Orig.

Suit for equitable apportionment of Apalachicola-Chattahoochee-Flint River Basin and associated injunction to sustain adequate flow.

* 134 S. Ct. 1509 (2014) (CVSG)

* 135 S. Ct. 471 (2014) (motion for leave to file bill of complaint granted)

* 135 S. Ct. 701 (2014) (special master appointed)

* 135 S. Ct. 2342 (2015) (master's fee assessed)

* 136 S. Ct. 353 (2015) (master's fee assessed)

Texas v. New Mexico, No. 141, Orig.

Suit to enjoin diversion of surface water and pumping of groundwater allegedly in violation of the Rio Grande Compact.

* 133 S. Ct. 1855 (2013) (CVSG)

* 134 S. Ct. 1050 (2014) (motion for leave to file bill of complaint granted; motion for leave to file supplemental brief granted; defendant invited to file motion to dismiss)

* 134 S. Ct. 1783 (2014) (United States' motion for leave to intervene granted)

* 135 S. Ct. 474 (2014) (special master appointed)

* 135 S. Ct. 1914 (2015) (motion for leave to intervene referred to master)

* 136 S. Ct. 289 (2015) (motion for leave to intervene referred to master; master's fee assessed)

Louisiana v. Bryson, No. 140, Orig. Suit to enjoin counting of non-immigrant foreign nationals in U.S. Census, for purpose of allocating seats in the House of Representatives.

* 132 S. Ct. 1781 (2012) (motion for leave to file bill of complaint denied)

Mississippi v. City of Memphis, No. 139, Orig. Suit to enjoin Memphis from withdrawing water from an interstate aquifer, and for equitable apportionment of the water therein, (246)

* 559 U.S. 901 (2010) (motion for leave to file bill of complaint denied without prejudice (247))

South Carolina v. North Carolina, No. 138, Orig. Suit for equitable apportionment of interstate stream.

* 552 U.S. 804 (2007) (motion for leave to file bill of complaint granted; application for preliminary injunction, having been presented to the Chief Justice and referred to the Court, denied)

* 552 U.S. 1160 (2008) (special master appointed; motions for leave to intervene referred to master)

* 552 U.S. 1254 (2008) (motion for leave to intervene referred to master)

* 129 S. Ct. 895 (2009) (master's report received; motion for leave to file exceptions granted)

* 556 U.S. 1151 (2009) (exceptions to master's report set for oral argument)

* 556 U.S. 1178 (2009) (Solicitor General's motion for leave to participate in oral argument as amicus curiae and for divided argument granted; argument times specified)

* 558 U.S. 256 (2010) (decision on merits authored by Alito, J.) (Roberts,

C.J., concurring in part and dissenting in part)

* 131 S. Ct. 975 (2011) (special master discharged)

Montana v. Wyoming, No. 137, Orig. Suit for damages alleging that Wyoming breached the Yellowstone River Compact by changing irrigation method.

* 550 U.S. 932 (2007) (CVSG)

* 552 U.S. 1175 (2008) (motion for leave to file bill of complaint granted; Wyoming invited to file motion to dismiss)

* 129 S. Ct. 480 (2008) (special master appointed; motion to dismiss referred to master; motion for leave to file brief as amicus curiae referred to special master)

* 558 U.S. 809 (2009) (master's fee assessed)

* 559 U.S. 989 (2010) (master's report received)

* 131 S. Ct. 497 (2010) (one exception to master's report set for oral argument, one recommitted to master; motion to dismiss denied; master's fee assessed) (Kagan, J., not participating)

* 131 S. Ct. 442 (2010) (motion for partial summary judgment granted in part and denied in part without prejudice in accordance with master's report; motion for leave to intervene denied) (Kagan, J., not participating)

* 131 S. Ct. 551 (2010) (motion of Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted) (Kagan, J., not participating)

* 131 S. Ct. 1765 (2011) (decision on merits authored by Thomas, J.) (Kagan, J., not participating) (Scalia, J., dissenting)

* 134 S. Ct. 500 (2013) (master's fee assessed)

* 135 S. Ct. 1479 (2015) (master's report received; parties "directed to consider carefully whether it is appropriate for them to continue invoking the jurisdiction of this Court"; master's fee assessed)

* 136 S. Ct. 289 (2015) (motion to defer consideration granted; parties ordered to submit a joint status report to the Court)

Brzak v. United Nations, No. 136, Orig.

United Nations High Commission for Refugees employees sued their superiors and the United Nations itself for Title VII violations, RICO violations, state law tort claims. (248)

* 549 U.S. 806 (2006) (motion for leave to file bill of complaint denied)

Texas v. Leavitt, No. 135, Orig.

Suit by several states to enjoin enforcement of new prescription drug component of Medicare, particularly the requirement that states repay federal government for certain cost savings, (249)

* 547 U.S. 1204 (2006) (motion for preliminary injunction denied; motion for leave to file bill of complaint denied)

New Jersey v. Delaware, No. 134, Orig.

Suit to establish riparian rights on the New Jersey side of Delaware River based on a compact.

* 546 U.S. 1147 (2006) (special master appointed)

* 549 U.S. 950 (2006) (master's fee assessed)

* 550 U.S. 932 (2007) (master's report received)

* 551 U.S. 1143 (2007) (master's fee assessed)

* 552 U.S. 972 (2007) (exceptions to master's report set for oral argument) (Breyer, J., not participating)

* 552 U.S. 597 (2008) (decision on merits authored by Ginsburg, J.) (decree entered; jurisdiction retained) (Breyer, J., not participating) (Stevens, J., concurring in part and dissenting in part) (Scalia, J., dissenting)

* 552 U.S. 1307 (2008) (special master discharged)

Arkansas v. Oklahoma, No. 133, Orig.

Substance of controversy unknown.

* 546 U.S. 1166 (2006) (motion for leave to file bill of complaint denied)

Alabama v. North Carolina, No. 132, Orig.

Same controversy as No. 131, Orig.

* 537 U.S. 806 (2002) (CVSG)

* 539 U.S. 925 (2003) (motion for leave to file bill of complaint granted)

* 540 U.S. 1014 (2003) (special master appointed)

* 549 U.S. 1202 (2007) (master's fee assessed)

* 556 U.S. 1206 (2009) (master's reports received)

* 558 U.S. 944 (2009) (exceptions to master's report set for oral argument) 249 6

* 560 U.S. 330 (2010) (partial motions to dismiss and for summary judgment granted in decision authored by Scalia, J.) (Kennedy, J., concurring in part and concurring in the judgment) (Roberts, C J., concurring in part and dissenting in part) (Breyer, J., concurring in part and dissenting in part)

* 562 U.S. 820 (2010) (master's fee assessed) (Kagan, J., not participating)

* 131 S. Ct. 1035 (2011) (master's fee assessed) (Kagan, J., not participating)

* 131 S. Ct. 1061 (2011) (special master discharged)

Southeast Interstate Low-Level Radioactive Waste Management Commission v. North Carolina, No. 131, Orig.

Suit for breach of contract and unjust enrichment under an interstate compact based on North Carolina's failure to continue efforts to obtain license for low-level radioactive waste disposal facility. (250)

* 531 U.S. 942 (2000) (CVSG)

* 533 U.S. 926 (2001) (motion for leave to file bill of complaint denied)

New Hampshire v. Maine, No. 130, Orig.

Suit to establish boundary underlying Piscataqua River. (251)

* 530 U.S. 1272 (2000) (motion for leave to file bill of complaint granted; defendant invited to file motion to dismiss on res judicata grounds; CVSG) (Souter, J., not participating)

* 531 U.S. 1066 (2001) (motion to dismiss set for oral argument) (Souter, J., not participating)

* 532 U.S. 742 (2001) (motion to dismiss granted in decision authored by Ginsburg, J.) (Souter, J., not participating)

* 532 U.S. 917 (2001) (motion for leave to participate in oral argument granted) (Souter, J., not participating)

* 533 U.S. 968 (2001) (petition for rehearing denied) (Souter, J., not participating) 250 251 250 251

Virginia v. Maryland, No. 129, Orig.

Suit to establish riparian rights on Potomac River based on a 1785 compact and to enjoin Maryland from requiring permit for Virginia to build wharves and other structures.

* 530 U.S. 1201 (2000) (motion for leave to file brief as amicus curiae granted; motion for leave to file bill of complaint granted)

* 531 U.S. 922 (2000) (special master appointed)

* 531 U.S. 1140 (2001) (motion for review of master's finding of subject-matter jurisdiction denied; motion for costs denied without prejudice to refiling before master)

* 532 U.S. 969 (2001) (motion for leave to file amendment to answer and counterclaim granted; amendment referred to master)

* 534 U.S. 807 (2001) (master's fee assessed)

* 536 U.S. 903 (2002) (master's fee assessed)

* 537 U.S. 1102 (2003) (master's report received)

* 537 U.S. 1185 (2003) (master's fee assessed)

* 538 U.S. 997 (2003) (motion for leave to file brief as amicus curiae granted; exception to master's report set for oral argument)

* 540 U.S. 56 (2003) (decision on merits authored by Rehnquist, C.J.) (decree entered; jurisdiction retained) (Stevens, J., dissenting) (Kennedy, J., dissenting)

* 540 U.S. 805 (2003) (motion of plaintiff for judicial notice denied)

* 540 U.S. 1101 (2004) (special master discharged)

Alaska v. United States, No. 128, Orig.

Suit to establish title to intrastate submerged lands.

* 530 U.S. 1228 (2000) (motion for leave to file bill of complaint granted)

* 531 U.S. 941 (2000) (special master appointed)

* 531 U.S. 1066 (2001) (motion for leave to file amended complaint granted)

* 532 U.S. 902 (2001) (amended complaint and answer referred to special master)

* 532 U.S. 1006 (2001) (motion for leave to intervene referred to special master)

* 532 U.S. 1017 (2001) (master's fee assessed)

* 534 U.S. 1017 (2001) (master's fee assessed)

* 534 U.S. 1103 (2002) (master's report received; motion for leave to intervene denied)

* 535 U.S. 1052 (2002) (master's fee assessed)

* 537 U.S. 1026 (2002) (master's fee assessed)

* 538 U.S. 1055 (2003) (master's fee assessed)

* 540 U.S. 1043 (2003) (master's fee assessed)

* 541 U.S. 1008 (2004) (master's report received)

* 541 U.S. 1061 (2004) (master's fee assessed)

* 543 U.S. 953 (2004) (motion for leave to file sur-reply denied; exceptions to master's report set for oral argument)

* 545 U.S. 75 (2005) (decision on merits authored by Kennedy, J.)

(Scalia, J., concurring in part and dissenting in part)

* 546 U.S. 413 (2006) (master's report filed; final decree entered; jurisdiction retained; master discharged) (Roberts, C.J., not participating)

Federal Republic of Germany v. United States, No. 127, Orig.

Action filed two hours before Arizona's scheduled execution of a German citizen seeking injunction to enforce an order of the International Court of Justice, which directed the United States to prevent execution.

* 526 U.S. 111 (1999) (opinion per curiam denying motion for preliminary injunction and motion for leave to file bill of complaint) (Souter, J., concurring) (Breyer, J., dissenting)

Kansas v. Nebraska, No. 126, Orig.

Suit claiming damages for overuse of water, pursuant to settlement agreement construing an earlier compact.

* 525 U.S. 805 (1998) (CVSG)

* 525 U.S. 1101 (1999) (motion for leave to file bill of complaint granted; motion to file sur-reply brief denied)

* 527 U.S. 1020 (1999) (motion to strike counterclaim denied; Nebraska invited to file motion to dismiss)

* 528 U.S. 1001 (1999) (special master appointed; motion to dismiss referred to master)

* 528 U.S. 1151 (2000) (master's report received)

* 530 U.S. 1272 (2000) (motion to dismiss denied)

* 531 U.S. 806 (2000) (motion for leave to file amended answer, counterclaim, and cross-claim referred to master; master's fee assessed)

* 532 U.S. 992 (2001) (master's fee assessed)

* 534 U.S. 1038 (2001) (master's fee assessed)

* 537 U.S. 806 (2002) (master's fee assessed)

* 538 U.S. 720 (2003) (master's report received; final settlement stipulation approved)

* 538 U.S. 1055 (2003) (master's fee assessed)

* 540 U.S. 964 (2003) (master's report received)

* 540 U.S. 1043 (2003) (master's fee assessed; special master discharged)

* 562 U.S. 820 (2010) (CVSG)

* 131 S. Ct. 1847 (2011) (motion for leave to file a petition granted; special master appointed)

* 132 S. Ct. 1618 (2012) (master's fee assessed)

* 133 S. Ct. 495 (2012) (master's fee assessed)

* 133 S. Ct. 1855 (2013) (master's fee assessed)

* 134 S. Ct. 2744 (2014) (exceptions to the master's report set for oral argument)

* 135 S. Ct. 44 (2014) (Solicitor General's motion for leave to participate in oral argument and for divided argument granted)

* 135 S. Ct. 1042 (2015) (decision on merits authored by Kagan, J.) (Roberts, C.J., concurring in part and dissenting in part) (Scalia, J., concurring in part and dissenting in part) (Thomas, J., concurring in part and dissenting in part)

* 135 S. Ct. 1255 (2015) (decree entered; jurisdiction retained)

* 135 S. Ct. 1582 (2015) (special master discharged)

Republic of Paraguay v. Gilmore, No. 125, Orig., decided sub nom.

Breard v. Greene

Eleventh-hour suit to stay Virginia's execution of Paraguayan citizen and to enforce

an International Court of Justice order.

* 523 U.S. 371 (1998) (opinion per curiam denying all motions, including motion for leave to file bill of complaint and motion for an original writ of habeas corpus) (separate statement by Souter, J.) (Stevens, J., dissenting) (Breyer, J., dissenting) (Ginsburg, J., dissenting)

Collins v. Alabama, No. 124, Orig.

Substance of controversy unknown.

* 519 U.S. 803 (1996) (motion to expedite consideration of motion to file bill of complaint denied; motion for leave to file bill of complaint denied)

Corrinet v. Ghali, No. 123, Orig.

Substance of controversy unknown.

* 516 U.S. 1039 (1996) (motion for leave to file bill of complaint denied)

Texas v. Louisiana, No. 122, Orig.

Substance of controversy unknown.

* 515 U.S. 1184 (1995) (motion to file bill of complaint dismissed pursuant to Supreme Court Rule of Procedure 46.1 (252))

Louisiana v. Mississippi, No. 121, Orig.

Suit to establish a boundary along Mississippi River.

* 513 U.S. 804 (1994) (motion to file supplemental answer granted)

* 513 U.S. 997 (1994) (master's report received)

* 514 U.S. 1002 (1995) (exceptions set for argument)

* 516 U.S. 22 (1995) (decision on merits authored by Kennedy, J.) (decree)

New Jersey v. New York, No. 120, Orig.

Suit to determine boundary at Ellis Island.

* 513 U.S. 924 (1994) (special master appointed)

* 514 U.S. 1013 (1995) (motion to intervene referred to special master)

* 514 U.S. 1125 (1995) (master's report received; motion to intervene denied)

* 515 U.S. 1130 (1995) (master's fee assessed)

* 519 U.S. 1038 (1996) (master's fee assessed)

* 520 U.S. 1273 (1997) (master's report received)

* 521 U.S. 1116 (1997) (master's fee assessed; motion to file exceptions in excess of page limits denied)

* 523 U.S. 767 (1998) (decision on merits authored by Souter, J.)

(Breyer, J., concurring) (Stevens, J., dissenting) (Scalia, J., dissenting)

* 524 U.S. 968 (1998) (petition for rehearing denied)

* 526 U.S. 589 (1999) (decree entered)

* 527 U.S. 1002 (1999) (master's fee assessed)

Additional Activity in Pre-1993 Cases (253)

Delaware v. New York, No. 111, Orig.

* 510 U.S. 1106 (1994) (plaintiff's motion to dismiss without prejudice referred to special master)

* 512 U.S. 1202 (1994) (Delaware's complaint dismissed; Delaware's motion to dismiss its own complaint without prejudice denied; New York's motion to file counterclaims denied without prejudice; renamed Texas v. New York)

* 513 U.S. 804 (1994) (Massachusetts's motion to dismiss its own complaint without prejudice denied; Massachusetts's amended complaint dismissed)

Oklahoma v. New Mexico, No. 109, Orig.

* 510 U.S. 930 (1993) (master's fee assessed)

* 510 U.S. 1106 (1994) (master's fee assessed; special master discharged)

Nebraska v. Wyoming, No. 108, Orig. (254)

* 513 U.S. 923 (1994) (master's report received)

* 513 U.S. 997 (1994) (master's fee assessed)

* 515 U.S. 1 (1995) (decision on merits authored by Souter, J.) (Thomas, ]., concurring in part and dissenting in part)

* 518 U.S. 1002 (1996) (master's fee assessed)

* 519 U.S. 1038 (1996) (master's fee assessed)

* 521 U.S. 1116 (1997) (master's fee assessed)

* 522 U.S. 1026 (1997) (master's fee assessed)

* 525 U.S. 927 (1998) (master's fee assessed)

* 527 U.S. 1033 (1999) (master's fee assessed)

* 528 U.S. 1059 (1999) (master's fee assessed)

* 530 U.S. 1259 (2000) (master's fee assessed)

* 534 U.S. 40 (2001) (master's report received; final settlement stipulation approved; decree further modified)

* 122 S. Ct. 585 (2001) (modified decree entered)

* 534 U.S. 1076 (2002) (master's fee assessed)

* 535 U.S. 984 (2002) (special master discharged)

* 132 S. Ct. 1072 (2012) (decree modified in part on joint motion)

Kansas v. Colorado, No. 105, Orig.

* 513 U.S. 803 (1994) (master's report received; master's fee assessed)

* 514 U.S. 673 (1995) (decision on merits authored by Rehnquist, C.J.)

* 519 U.S. 1005 (1996) (master's fee assessed)

* 522 U.S. 803 (1997) (master's report received)

* 522 U.S. 1028 (1997) (master's fee assessed)

* 522 U.S. 1073 (1998) (exceptions overruled without prejudice to renew)

* 526 U.S. 1048 (1999) (master's fee assessed)

* 529 U.S. 1015 (2000) (master's fee assessed)

* 531 U.S. 1008 (2000) (master's fee assessed)

* 531 U.S. 1122 (2001) (motion for leave to file reply to brief of United States granted; exceptions to master's report set for oral argument)

* 532 U.S. 902 (2001) (motion of Acting Solicitor General for divided

* argument granted)

* 533 U.S. 1 (2001) (decision on merits authored by Stevens, J.) (O'Connor, J., concurring in part and dissenting in part)

* 537 U.S. 1230 (2003) (master's fee assessed)

* 540 U.S. 1072 (2003) (master's report received)

* 540 U.S. 1101 (2004) (master's fee assessed)

* 541 U.S. 1071 (2004) (motion for leave to file sur-reply granted; exceptions to master's report set for oral argument)

* 542 U.S. 934 (2004) (Solicitor General's motion for divided argument

* granted)

* 543 U.S. 86 (2004) (decision on merits authored by Breyer, J.) (Thomas, J., concurring in part and concurring in judgment) (Stevens, J., concurring in part and dissenting in part)

* 543 U.S. 1046 (2005) (master's fee assessed)

* 546 U.S. 1166 (2006) (master's fee assessed)

* 552 U.S. 1129 (2008) (final master's report received; master's fee assessed)

* 553 U.S. 1092 (2008) (exception to master's report set for oral argument)

* 129 S. Ct. 617 (2008) (motion for leave to file sur-reply denied)

* 129 S. Ct. 970 (2009) (master's fee assessed)

* 556 U.S. 98 (2009) (decision on merits authored by Alito, J.) (Roberts, C J., concurring)

* 556 U.S. 1233 (2009) (special master discharged)

United States v. Alaska, No. 84, Orig.

* 517 U.S. 1207 (1996) (master's report received)

* 519 U.S. 1038 (1996) (motion for additional time for oral argument granted; California's motion to participate as amicus curiae and for divided argument denied)

* 521 U.S. 1 (1997) (decision on merits authored by O'Connor, J.) (Thomas, J., concurring in part and dissenting in part)

* 521 U.S. 1144 (1997) (petition for rehearing denied)

* 530 U.S. 1021 (2000) (final decree entered; motion for leave to file counterclaim granted; jurisdiction retained)

Texas v. New Mexico, No. 65, Orig.

* 510 U.S. 1106 (1994) (river master's fee assessed)

* 512 U.S. 1202 (1994) (river master's fee assessed)

* 513 U.S. 803 (1994) (river master's fee assessed)

* 513 U.S. 997 (1994) (river master's fee assessed)

* 514 U.S. 1095 (1995) (river master's fee assessed)

* 516 U.S. 803 (1995) (river master's fee assessed)

* 517 U.S. 1232 (1996) (river master's fee assessed)

* 519 U.S. 803 (1996) (river master's fee assessed)

* 519 U.S. 979 (1996) (river master's fee assessed)

* 520 U.S. 1227 (1997) (river master's fee assessed)

* 524 U.S. 925 (1998) (river master's fee assessed)

* 525 U.S. 805 (1998) (river master's fee assessed)

* 526 U.S. 1085 (1999) (river master's fee assessed)

* 528 U.S. 925 (1999) (river master's fee assessed)

* 530 U.S. 1212 (2000) (river master's fee assessed)

* 531 U.S. 921 (2000) (river master's fee assessed)

* 533 U.S. 946 (2001) (river master's fee assessed)

* 534 U.S. 971 (2001) (river master's fee assessed)

* 537 U.S. 806 (2002) (river master's fee assessed)

* 539 U.S. 924 (2003) (river master's fee assessed)

* 540 U.S. 964 (2003) (river master's fee assessed)

* 544 U.S. 1059 (2005) (river master's fee assessed)

* 546 U.S. 806 (2005) (river master's fee assessed) (Roberts, C.J., not participating)

* 549 U.S. 806 (2006) (river master's fee assessed)

* 552 U.S. 804 (2007) (river master's fee assessed)

* 555 U.S. 806 (2008) (river master's fee assessed)

* 558 U.S. 809 (2009) (river master's fee assessed)

* 562 U.S. 820 (2010) (river master's fee assessed)

* 132 S. Ct. 81 (2011) (river master's fee assessed)

* 133 S. Ct. 398 (2012) (river master's fee assessed)

* 134 S. Ct. 372 (2013) (river master's fee assessed)

* 135 S. Ct. 322 (2014) (river master's fee assessed)

* 136 S. Ct. 289 (2015) (river master's fee assessed)

New Jersey v. Delaware, No. 11, Orig.

* 546 U.S. 1028 (2005) (motion to reopen and for supplemental decree denied; alternative motion for leave to file bill of complaint granted; docketed as No. 134, Orig.)

United States v. Louisiana, No. 9, Orig. (Texas Boundary Case)

* 525 U.S. 1 (1998) (supplemental decree entered on joint motion)

Arizona v. California, No. 8, Orig.

* 510 U.S. 930 (1993) (master's report received)

* 513 U.S. 803 (1994) (motion for leave to intervene referred to master)

* 514 U.S. 1081 (1995) (motion for leave to intervene denied)

* 528 U.S. 803 (1999) (master's report received)

* 528 U.S. 1147 (2000) (motion to file brief amicus curiae granted; exceptions to master's report set for oral argument)

* 529 U.S. 1015 (2000) (Solicitor General's motion for divided argument granted)

* 530 U.S. 392 (2000) (opinion on merits authored by Ginsburg, J.) (Rehnquist, C.J., concurring in part and dissenting in part)

* 531 U.S. 1 (2000) (supplemental decree entered; jurisdiction retained)

* 540 U.S. 1216 (2004) (memorandum opinion and order on motions for

* summary judgment and motion in limine received and filed)

* 541 U.S. 901 (2004) (motion for leave to intervene denied)

* 547 U.S. 150 (2006) (final settlement agreements approved; consolidated decree entered; jurisdiction retained; (255) special master discharged)

United States v. California, No. 5, Orig.

* 135 S. Ct. 563 (2014) (fifth supplemental decree entered on joint motion; jurisdiction retained)

New York v. Illinois, No. 3, Orig.

* 558 U.S. 1145 (2010) (motion for preliminary injunction denied)

* 559 U.S. 1003 (2010) (renewed motion for preliminary injunction denied)

* 130 S. Ct. 2397 (2010) (motion to reopen and for supplemental decree denied; alternative motion for leave to file bill of complaint denied)

Michigan v. Illinois, No. 2, Orig.

* 558 U.S. 1145 (2010) (motion for preliminary injunction denied)

* 559 U.S. 1003 (2010) (renewed motion for preliminary injunction denied)

* 130 S. Ct. 2397 (2010) (motion to reopen and for supplemental decree denied; alternative motion for leave to file bill of complaint denied)

Wisconsin v. Illinois, No. 1, Orig.

* 558 U.S. 1145 (2010) (motion for preliminary injunction denied)

* 559 U.S. 1003 (2010) (renewed motion for preliminary injunction denied)

* 130 S. Ct. 2397 (2010) (motion to reopen and for supplemental decree denied; alternative motion for leave to file bill of complaint denied)

(1.) U.S. Const, art. III, [section] 2, cl. 2 ("In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.").

(2.) See Henry Wade Rogers, The Essentials of a Law Establishing an International Court, 22 Yale L.J. 277, 280 (1913) ("De Tocqueville said: 'In the nations of Europe, the courts of justice are only called upon to try the controversies of private individuals; but the Supreme Court of the United States summons sovereign powers to its bar.'"); see also CHARLES WARREN, The Supreme Court and Sovereign States 6-8 (1924). In addition to states and the United States government, ambassadors, public ministers, and consuls can also invoke the original jurisdiction, see U.S. CONST, art. Ill, [section] 2, cl. 2, but in only two such cases has such an invocation produced a decision on the merits, see Casey v. Galli, 94 U.S. 673 (1877); Jones v. Le Tombe, 3 U.S. (3 Dali.) 384 (1798); see also Note, The Original Jurisdiction of the United States Supreme Court, 11 Stan. L. Rev. 665, 718-19 (1959). Although Indian tribes are sovereign as well, they do not have the power to invoke the Court's original jurisdiction. See Cherokee Nation v. Georgia, 30 U.S. 1, 25 (1831) (acknowledging that the Cherokee Nation is sovereign but refusing to grant it the right to sue in the original jurisdiction); see also Principality of Monaco v. Mississippi, 292 U.S. 313 (1934) (holding that a foreign state cannot bring suit against an American state in the original jurisdiction, at least without that American state's consent); John C. Sullivan, Considering the Constitutionality of Nonstate Intervenors in Original Jurisdiction Actions, 86 NOTRE Dame L. Rev. 2219, 2224 (2001) (exploring the Court's inconsistent positions over time as to when nonstate parties may intervene in original jurisdiction cases).

(3.) There have been 263 cases in the original jurisdiction resulting in some form of published action by the Court. See Vincent L. McKusick, Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961, 45 Me. L. Rev. 185, 216-42 (1993); Note, supra note 2, at 901-19; infra Appendix B.

(4.) Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); see abo McKusick, supra note 3, at 202 ("The substantial set of gatekeeping rules that the Supreme Court has developed adds up to making its original jurisdiction for practical purposes almost as discretionary as its certiorari jurisdiction over appellate cases.").

(5.) See, e.g., Alaska v. United States, 545 U.S. 75, 110 (2005) (holding that the United States reserved title to certain intrastate submerged lands when it admitted Alaska to the Union).

(6.) See, e.g., Virginia v. Maryland, 540 U.S. 56, 78-79 (2003) (determining riparian rights with reference to an interstate compact from 1785).

(7.) See, e.g., New Hampshire v. Maine, 532 U.S. 742, 746 (2001) (noting that King George II established an interstate boundary in 1740 in a boundary dispute).

(8.) See, e.g., United States v. California, 135 S. Ct. 563, 563 (2014) (entering the fifth supplemental decree in a fifty-year-old case).

(9.) See, e.g., id.

(10.) See, e.g., New Jersey v. New York, 526 U.S. 589, 589-90 (1999) (considering, for the purpose of fixing the location of an interstate boundary at Ellis Island, details as narrow as whether a pier had been built on filled land before entering a mathematically precise decree in accordance with GPS-based testimony).

(11.) See, e.g., Wisconsin v. Illinois, 311 U.S. 107, 110 (1940) (modifying a decree temporarily because the water flow apportioned by the decree had led to an accumulation of sludge).

(12.) See infra Part IV; infra Appendix A.

(13.) 460 U.S. 605 (1983).

(14.) Id. at 626.

(15.) See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367 (1992). I do not advocate for the Court's more recent articulation of the standard for district courts in Horne v. Flores, 557 U.S. 433 (2009), for reasons discussed infra Part V.

(16.) Arizona v. California, 460 U.S. at 626.

(17.) One original jurisdiction case, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is celebrated, though not for its original jurisdiction significance specifically. But see Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443 (1989) (considering implications specific to original jurisdiction).

(18.) See, e.g., Anne-Marie C. Carstens, Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court's Original Jurisdiction, 87 Minn. L. Rev. 625 (2002); see also Cynthia J. Rapp, Guide for Special Masters in Original Cases Before the Supreme Court of the United States (Oct. 2004) (on file with author).

(19.) See, e.g., Stephen R. McAllister, Can Congress Create Procedures for the Supreme Court's Original Jurisdiction Cases?, 12 GREEN Bag 2D 287 (2009); Stephen R. McAllister, Congress and Procedures for the Supreme Court's Original Jurisdiction Cases: Revisiting the Question, 18 Green Bag 2D 49 (2014); see also Kansas v. Colorado, 556 U.S. 98, 109-10 (2009) (Roberts, C.J., concurring) (arguing that the Exceptions Clause demonstrates that the Supreme Court, not Congress, has the power to set witness fees in original jurisdiction cases).

(20.) See, e.g., Michael Coenen, Comment, Original Jurisdiction Deadlocks, 118 Yale L.J. 1003 (2009).

(21.) See, e.g., Lochlan F. Shelfer, Note, Special Juries in the Supreme Court, 123 Yale L.J. 208 (2013).

(22.) 460 U.S. 605, 619 (1983).

(23.) Id. at 619, 626.

(24.) Robert von Moschzisker, Res Judicata, 38 Yale L.J. 299, 300 (1929).

(25.) Perhaps a superior denominator would be the number of cases in which a modification was actually sought. Nevertheless, I decided to use the total number of cases with decrees instead for reasons discussed infra Part IV. See infra note 159 and accompanying text.

(26.) 460 U.S. at 619.

(27.) Although most of the principles developed in this line of cases are applicable to the original jurisdiction, there are exceptions. A few recent decree-modification cases appear to have loosened the test even further in light of federalism concerns that arise in institutional-reform litigation. See, e.g., Horne v. Flores, 557 U.S. 433 (2008); Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004). For reasons explained below, these federalism concerns are not as salient in original jurisdiction cases. See infra Part V.

(28.) Hannis Taylor, The Origin and Growth of the American Constitution 152 (1911).

(29.) Articles of Confederation of 1777, art. IX, cl. 2; see also id. art. IX, cl. 3 (providing for the use of the same procedure in the case of "controversies concerning the private right of soil claimed under different grants of two or more States").

(30.) Taylor, supra note 28, at 152; Robert D. Cheren, Environmental Controversies "Between Two or More States," 31 PaceEnvtl. L. Rev. 105, 115 (2014).

(31.) Cheren, supra note 30, at 115; see 1 Hampton L. Carson, The History of the Supreme Court of the United States with Biographies of All the Chief and Associate Justices 75-76 (1904); 1 Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 189 (1971); Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499, 1561 n.222 (1990) ("[U]nder the Articles of Confederation the only suit between states ever to reach judgment before the nascent national tribunal established to hear such cases was in fact litigated by a member of Congress. Members of Congress also appeared before the national tribunal in both of the only two other state suits that came before the tribunal, but never reached judgement [sic]." (citations omitted)).

(32.) Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 724 (1838); see also 1 JAMES Brown Scott, Judicial Settlement of Controversies Between States of the American Union: An Analysis of Cases Decided in the Supreme Court of the United States 3 (1919) ("[T]he 9th Article was a prophecy of better things, rather than a realization; for only one case was decided and only one commission was appointed under this procedure; and when the government under the Constitution succeeded the government under the Articles there were controversies between eleven States concerning their boundaries, to mention only differences of this nature, unsettled between the States.").

(33.) Scott, supra note 32, at 3-4 (1919); cf. id. at 3 ("But jurisdiction in the matter of boundaries was only one of the differences which the statesmen [during the time of the Articles of Confederation] foresaw.").

(34.) U.S. Const, art. III, [section] 2, cl. 2; see also Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29 (1934) ("[T]he States by the adoption of the Constitution, acting 'in their highest sovereign capacity, in the convention of the people,' waived their exemption from judicial power. The jurisdiction of this Court over the parties in such cases was thus established 'by their own consent and delegated authority' as a necessary feature of the formation of a more perfect Union."). The Court was also given original jurisdiction over another type of case: those involving ambassadors, public ministers, and consuls. U.S. Const, art. III, [section] 2, cl. 2. But this provision has not been invoked successfully in more than two centuries. See supra note 2 and accompanying text.

(35.) See infra Appendix A.

(36.) See, e.g., Louisiana v. Mississippi, 516 U.S. 22 (1995); Rhode Island, 37 U.S. (12 Pet.) at 724.

(37.) See, e.g., United States v. California, 381 U.S. 139 (1965) (regarding title to submerged lands under the Pacific Ocean that had become valuable for their oil); see also infra Section V.C.

(38.) South Carolina v. Katzenbach, 383 U.S. 301 (1966).

(39.) McKusick, supra note 3, at 212-13; see also Georgia v. Nixon, 414 U.S. 810 (1973) (denying the motion for leave to file a bill of complaint).

(40.) See, e.g., Oysters vs. Atlanta; How Exactly Will the Supreme Court Decide How To Divide Water in the ACF Basin?, SustainAtlanta (July 4, 2015), http://sustainableatlantaga .com/2015/07/04/oysters-vs-atlanta-how-exactly-will-the-supreme-court-decide-how-to-di vide-water-in-the-acf-basin [http://perma.cc/WP3J-G9UX].

(41.) See, e.g., New Jersey v. New York, 523 U.S. 767 (1998) (relying on the same interstate compact to draw the interstate boundary at Ellis Island); Report by Special Master Paul R. Verkuil at 15, New Jersey v. New York, 523 U.S. 767 (No. 120), 1997 WL 291594, at *15 (discussing an interstate compact).

(42.) See Nebraska v. Wyoming, 325 U.S. 589, 618 (1945) ("Apportionment calls for the exercise of an informed judgment on a consideration of many factors. Priority of appropriation is the guiding principle .... [However, the many factors involved] indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made.").

(43.) See, e.g., Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (involving a complaint about noxious gas being discharged from Tennessee into Georgia).

(44.) See, e.g., Virginia v. West Virginia, 241 U.S. 531 (1916) (involving an interstate debt dispute based on West Virginia's agreement to take on one-third of Virginia's debt at the time it seceded from Virginia and entered the Union).

(45.) See, e.g., Delaware v. New York, 507 U.S. 490 (1993) (establishing the right to escheat unclaimed securities distributions).

(46.) See, e.g., Complaint, Nebraska v. Colorado, No. 144 (U.S. Dec. 18, 2014), 2014 WL 7474136 (challenging the legality of Colorado's decriminalization of personal marijuana use); see also Nebraska v. Colorado, 136 S. Ct. 1034 (2016) (denying the motion for leave to file a bill of complaint).

(47.) See, e.g., Louisiana v. W. Reserve Historical Soc'y, 465 U.S. 1018 (1984) (denying the motion for leave to file a bill of complaint in a replevin action); Justices Reject Documents Battle Between Ohio Group, Louisiana, TOL. Blade, Feb. 22, 1984, at 3 (providing background on the replevin action); see also Massachusetts v. New York, 271 U.S. 65 (1926) (eminent domain); United States v. Minnesota 270 U.S. 181 (1926) (patents).

(48.) See Mississippi v. Louisiana, 506 U.S. 73, 77 (1992) (describing the Court's development of a discretionary " determination] [of] whether a case is appropriate for [its] original jurisdiction").

(49.) Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496-97 (1971) ("[I]t is a time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it.").

(50.) Mississippi v. Louisiana, 506 U.S. at 77 (1992) ("We first exercised this discretion not to accept original actions in cases within our nonexclusive original jurisdiction, ... [b]ut we have since carried over its exercise to actions ... where our jurisdiction is exclusive.").

(51.) 401 U.S. at 493.

(52.) Id. at 498-99 ("What gives rise to the necessity for recognizing such discretion is preeminently the diminished societal concern in our function as a court of original jurisdiction and the enhanced importance of our role as the final federal appellate court.").

(53.) Id. at 499; see also Mississippi v. Louisiana, 506 U.S. at 76 (1992) ("Recognizing the 'delicate and grave' character of our original jurisdiction, we have interpreted the Constitution and 28 U.S.C. [section] 1251(a) as making our original jurisdiction 'obligatory only in appropriate cases' and as providing us 'with substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in this Court.'").

(54.) See Sup. Ct. R. 17.3; Mississippi v. Louisiana, 506 U.S at 76 ("Recognizing the delicate and grave character of our original jurisdiction, we have interpreted the Constitution and 28 U.S.C. [section] 1251(a) ... as providing us with substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in this Court." (citation omitted)).

(55.) See infra Appendix A.

(56.) See infra Appendix A. The Court recently denied Nebraska's motion for leave to file a complaint against Colorado for its decriminalization of marijuana. Nebraska v. Colorado, 136 S. Ct. 1034 (2016). Justices Thomas and Alito dissented, arguing that the Court's discretionary approach to the original jurisdiction "bears reconsideration." Id. at 3 (Thomas, dissenting). This is a significant change of position from prior cases, as Justice Thomas conceded. Id.

(57.) Sup. Ct. R. 17.

(58.) See Carstens, supra note 18, at 625 (objecting to this phenomenon).

(59.) Shelfer, supra note 21, at 227-31.

(60.) U.S. Const, art. III.

(61.) See, e.g., Nebraska v. Wyoming, 534 U.S. 40 (2001) (modifying a water rights decree for the second time, more than fifty years after the entry of the initial decree).

(62.) Arizona v. California, 460 U.S. 605, 619, 626 (1983).

(63.) Von Moschzisker, supra note 24, at 312 ("[Res judicata] constitutes an absolute bar to a subsequent action...."). Specifically, if the party won the first action, then that party's subsequent claim will be merged into the initial claim, and only proceedings for the effectuation of judgment will be permitted. If the party lost the first action, then that party's subsequent claim will be barred. Jack H. Friedenthal et al., Civil Procedure 1213 (11th ed. 2013).

(64.) Relitigating an issue already decided by a court is also undesirable in nonoriginal jurisdiction cases. A litigated decree has already required the parties to bear the financial burden of fighting through to a merits decision. Furthermore, it is unclear that additional litigation after a final judgment is worth the added cost. See Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399, 445 (1973) ("[T]he expected value of relitigation in enhancing the accuracy of the adjudicative process is (in general) zero.").

(65.) Sec Stephen R. Kelly, How the Carolinas Fixed Their Blurred Lines, N.Y. Times (Aug. 23, 2014), http://www.nytimes.com/2014/08/24/opinion/sunday/how-the-carolinas-fixed-their -blurred-lines.html [perma.cc/JD52-MSGY] ("[The Carolinas'] two-decade effort [to amicably re-mark their boundary] is not complete, and the fate of a gas station whose pumps have surfaced in the 'wrong' state could derail the whole thing. But if they succeed, they might well set an example of comity and cooperation for the rest of our head-butting nation.").

(66.) See Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 498 (1971).

(67.) Infra Appendix B lists scores of Court orders dealing solely with masters' compensation.

(68.) See Frequently Asked Questions, Sup. Ct. U.S. (2014), http://www.supremecourt.gov/faq.aspx [https://perma.cc/6PG5-KQKP] (estimating that ten thousand petitions for writs of certiorari are filed each year, with oral argument occurring in just seventy-five to eighty cases).

(69.) 526 U.S. 589, 589-90 (1999).

(70.) See Carstens, supra note 18.

(71.) See Shelfer, supra note 21 (describing the only jury trial over which the Court has presided).

(72.) See Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 498-99 (1971).

(73.) See generally id. (discussing the motivations for gatekeeping by denying original jurisdiction cases over which the Court admittedly has jurisdiction); McKusick, supra note 3 (describing the similar use of motions for leave to file bills of complaint as a gatekeeping function).

(74.) See, e.g., Report of Special Master Elbert P. Tuttle at 38-46, Arizona v. California, 460 U.S. 605 (1983) (No. 8) [hereinafter Tuttle Report],

(75.) See, e.g, Montana v. Wyoming, 135 S. Ct. 1479, 1479 (2015) (mem.) ("The Master's Report and submissions of parties indicate that fees and expenses could well exceed any recovery. Parties are therefore directed to consider carefully whether it is appropriate for them to continue invoking the jurisdiction of this Court."). The Court has allowed settlements even on thorny issues like its own jurisdiction. See infra Section II.B (discussing the Court's acquiescence in a decree modification that altered the jurisdiction-savings clause it had entered in its earlier decree in Nebraska v. Wyoming, 345 U.S. 981, 981 (1953)).

(76.) One case in which such a risk materialized was Virginia v. West Virginia, 220 U.S. 1 (1911). The Court, having been pressed to rule on whether West Virginia owed Virginia a debt based upon certain agreements entered into at the time of West Virginia's creation, admonished: "Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end." Id. at 36. Instead, a decade of additional litigation ensued, with the Court nearly having to decide whether it could issue a writ of mandamus to compel West Virginia to levy a tax and pay its debt. See Virginia v. West Virginia, 246 U.S. 565 (1918); see also Wisconsin v. Illinois, 289 U.S. 395, 411 (1933) (determining upon the special master's submission that Illinois was deliberately failing to raise the necessary funds to comply with a decree, the Court enlarged that decree to command that "the state of Illinois is hereby required to take all necessary steps, including whatever authorizations or requirements, or provisions for the raising, appropriation, and application of moneys, may be needed" to comply with this decree); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 694 (1838) ("Mr. Justice BARBOUR asked Mr. Hazard, if he could point out any process by which the Court could carry a final decree in the cause into effect, should it make one. For instance, if an application should be made by Rhode Island for process to quiet her in her possession, what process could the Court issue for that purpose?").

(77.) Anthony DiSarro, Six Decrees of Separation: Settlement Agreements and Consent Orders in Federal Civil Litigation, 60 Am. U. L. Rev. 275 (2010).

(78.) See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101,1129 (1986) ("If a later modifying court can lightly cast

aside the terms of consent decrees, parties will be deterred from entering judgments by consent, and an efficient form of dispute resolution will be discouraged.").

(79.) See id. at 1129-31 (1986).

(80.) The Court has considered fifty-seven boundary cases, entering decrees in forty-two of them. Of these, it has only modified four. See infra Appendix A.

(81.) Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) at 658.

(82.) Id. at 679 (noting that, in the view of the respondent state, the boundary determinations of the Crown have no more legal force than the globe-dividing bull of Pope Nicholas V or the similar proclamation of Alexander VI).

(83.) Rhode Island v. Massachusetts, 45 U.S. (4 How.) 591, 638 (1846) (applying the principle, announced earlier by the man who would become Lord Mansfield, that the tribunal should not "disturb" an interstate agreement if the agreement had stood for many years).

(84.) See Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) at 658 ("[Boundary disputes cannot] be settled without war or treaty which is by political power; but, under the old and new confederacy, they could and can be settled by a court constituted by themselves...."); see abo Texas v. New Mexico, 462 U.S. 554, 571 n.18 (1983) ("The model case for invocation of this Court's original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign.").

(85.) One relatively late example was the so-called "Honey War," in which several beehives were harmed, a tax collector was jailed, and hundreds of troops were gathered. Craig Hill, The Honey War, 14 PIONEER Am. 81, 83-84 (1982). "Governor Lucas of Iowa warned the Legislative Assembly in 1838 that 'this dispute may ultimately lead to the effusion of blood,'" but it appears that bloodshed was avoided. Id. The Supreme Court took up the case in Missouri v. Iowa, 48 U.S. (7 How.) 660 (1849).

(86.) Kansas v. Colorado, 206 U.S. 46, 80 (1907) ("This suit involves no question of boundary or of the limits of territorial jurisdiction. Other and incorporeal rights are claimed by the respective litigants."). This appears to have been the first water rights case, although cases related to the obstruction of interstate rivers are much older. See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 626-27 (1851) (decree to alter a bridge).

(87.) Manny Fernandez, Secede? Separatists Claim Texas Never Joined United States, N.Y. Times (Mar. 9, 2015), http://www.nytimes.com/2015/03/10/us/secede-republic-claims-texas-never -joined-us.html [http://perma.ee/3B9M-YQ9R] ("[Federal officials] noted that those with ties to the [so-called 'Republic of Texas'] group have taken their nationalist beliefs to violent extremes in the past, including a seven-day standoff with the authorities in 1997 that ended with a gun battle in which one group member was killed.").

(88.) The Court has nevertheless alluded to the threat even in twentieth-century cases. See, e.g., Nebraska v. Wyoming, 325 U.S. 589, 608 (1945) ("The dry cycle which has continued over a decade has precipitated a clash of interests which between sovereign powers could be traditionally settled only by diplomacy or war.").

(89.) See, e.g., Colorado v. New Mexico, 459 U.S. 176,183-88 (1982) (collecting cases on equitable apportionment in water rights cases); Idaho ex rel. Evans v. Oregon, 444 U.S. 380 (1980) (allowing an unusual action to proceed for the equitable apportionment of fish).

(90.) New Jersey v. New York, 523 U.S. 767, 811-12 (1998) (holding that where an interstate compact and historical evidence demonstrated the location of a boundary, equitable considerations could not justify even slight modifications).

(91.) Id.

(92.) See, e.g., id. at 780 (rejecting the special master's suggestion to draw boundary lines around buildings on Ellis Island, because "the Court ha[s] no authority to modify that line to address considerations of practicality and convenience."). But see Texas v. Louisiana, 426 U.S. 465, 467 (1976) (per curiam) (approving a special master recommendation "[t]hat the boundary [in a particular region] be established [as described], with the right to the States of Texas and Louisiana to alter such boundary within Sabine Lake by agreement within the time proposed" (emphasis added)).

(93.) See, e.g., Kansas v. Missouri, 340 U.S. 859, 859 (1950) (modifying a decree in light of an interstate compact).

(94.) The flexible test would produce a similar degree of finality in most boundary dispute cases because there would be no relevant changed circumstances. There are rare instances where modifications become necessary in boundary disputes, though, and the flexible test is superior in such cases. See infra Section V.C.

(95.) In that sense, water rights cases bear resemblance to a different type of action: institutional reform litigation in district courts. As explained infra Section V.B, courts have been known to fashion intricate decrees to ensure that the plaintiffs' constitutional rights are vindicated, but also allowed for modifications of these decrees in light of changed circumstances. Part V suggests that some, though not all, of the lessons the Court has learned in the institutional reform context could be applied in the original jurisdiction, guiding the Court's finality determinations.

(96.) 515 U.S. 1 (1995).

(97.) See id. at 4.

(98.) See id. at 5.

(99.) Nebraska v. Wyoming, 325 U.S. 589, 665-72 (1945).

(100.) Id. at 665-69.

(101.) Id. at 671.

(102.) See Order Modifying and Supplementing Decree, Nebraska v. Wyoming, 345 U.S. 981, 98182 (1953) (No. 5).

(103.) Id.

(104.) Nebraska v. Wyoming, 515 U.S. 1, 5-6 (1995).

(105.) Id. at 9 (quoting Nebraska v. Wyoming, 507 U.S. 584, 593 (1993)).

(106.) Id. at 12.

(107.) Id. at 14.

(108.) Nebraska v. Wyoming, 122 S. Ct. 585 (2001) (mem.). The parties apparently negotiated a more detailed settlement with respect to a particular apportionment, and on joint motion the Court further modified its decree in 2012. Nebraska v. Wyoming, 132 S. Ct. 1072 (2012) (mem.).

(109.) Order Modifying and Supplementing Decree, supra note 102, at 981 (striking the beginning of the jurisdiction-saving clause and "substituting for it the following: Any of the parties

may apply at the foot of this decree for its amendment or for further relief, except that for a period of five years ... the State of Colorado shall not institute any [such] proceedings").

(110.) The standard that this Note recommends for original jurisdiction cases, on the other hand, would permit flexibility in this case because a change in facts will have rendered the original decree insufficiently effective in vindicating the litigants' rights. See infra Part V.

(111.) See infra text accompanying notes 116-120.

(112.) Wisconsin v. Illinois, 281 U.S. 179, 196 (1930).

(113.) Id.

(114.) Wisconsin v. Illinois, 281 U.S. 696 (1930) (decree).

(115.) Wisconsin v. Illinois, 289 U.S. 395, 411, 412 (1933).

(116.) Wisconsin v. Illinois, 311 U.S. 107, 107 (1940) (order).

(117.) Id. at 110-11.

(118.) See Wisconsin v. Illinois, 352 U.S. 945, 947 (1956) (per curiam). The Court does not state that all parties consented to the modification. Id.

(119.) Wisconsin v. Illinois, 352 U.S. 947, 947 (1956) (per curiam).

(120.) Wisconsin v. Illinois, 352 U.S. 983, 983 (1957) (per curiam).

(121.) Nebraska v. Wyoming, 515 U.S. 1, 11-12 (1995); Wisconsin v. Illinois, 352 U.S. 945, 947 (1956) (per curiam).

(122.) The relevant opinion in Nebraska v. Wyoming postdates Arizona v. California, so a change in law cannot be the explanation for this incongruence. Compare Nebraska v. Wyoming, 122 S. Ct. 585 (2001) (mem.), with Arizona v. California, 460 U.S. 605, 619 (1983).

(123.) Von Moschzisker, supra note 24, at 312 ("[Res judicata] constitutes an absolute bar to a subsequent action....").

(124.) 460 U.S. 605.

(125.) Arizona v. California, 344 U.S. 919, 919 (1953) (order).

(126.) Arizona v. California, 350 U.S. 114, 115 (1955) (per curiam); Arizona v. California, 530 U.S. 392, 397 (2000).

(127.) See Arizona v. California, 530 U.S. at 397.

(128.) Id. A special master presides over an original case much like a trial judge; parties may file exceptions to the special master's findings, and the Court reviews the special master's factual and legal determinations de novo. Rapp, supra note 18, at 2-3 ("Masters do not have the power to decide issues of fact; they can only submit advisory recommendations for fact- findings that are subject to exceptions and objections by the parties.").

(129.) 43 U.S.C. [section] 617 (2012).

(130.) See Arizona v. California, 373 U.S. 546, 598-600 (1963).

(131.) Id. at 600.

(132.) See Arizona v. California, 376 U.S. 340, 342-43 (1963) (decree); Arizona v. California, 373 U.S. at 600-01.

(133.) Arizona v. California, 376 U.S. at 353 (decree). For different approaches to jurisdiction-saving measures, see, for example, New Jersey v. Delaware, 552 U.S. 597, 624 (2008), which enters a shorter and broader jurisdiction-saving clause, allowing the Court to act "as it may from time to time deem necessary or desirable to give proper force and effect to this Decree or to effectuate the rights of the parties"; and New Jersey v. New York, 347 U.S. 995, 1005 (1954) (per curiam), which adds to its jurisdiction-saving clause that failure to fde exceptions to the special master's report would not estop the party from requesting a modification. While jurisdiction-saving clauses provide evidence that the Court anticipated that modifications might be necessary, the Court has been willing to modify decrees even when such clauses were not present in the initial decree. See, e.g., Wyoming v. Colorado, 259 U.S. 49 (omitting any jurisdiction-saving clause), decree modified, 260 U.S. 1 (1922), decree vacated and new decree entered, 353 U.S. 953 (1957).

(134.) See Arizona v. California, 530 U.S. 392, 404-05 (2000).

(135.) Arizona v. California, 439 U.S. 419, 436 (1979) (per curiam) (supplemental decree).

(136.) Tuttle Report, supra note 74, at 30 & n.i.

(137.) Id. at 36 & n.9.

(138.) United States v. U.S. Smelting Ref. & Mining Co., 339 U.S. 186,199 (1950); see also Higgins v. Cal. Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir. 1924) ("[I]t is now well settled that the 'law of the case' does not rigidly bind a court to its former decisions, but is only addressed to its good sense." (citations omitted)).

(139.) U.S. Smelting, 339 U.S. at 198.

(140.) See, e.g., Messenger v. Anderson, 225 U.S. 436, 444 (1912) ("[T]he phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided....").

(141.) Tuttle Report, supra note 74, at 34. He also reasoned that the Court had to have intended to give itself some additional power with Article IX; the Court already has inherent power to correct clerical errors. See id.

(142.) Arizona v. California, 460 U.S. 605, 618 (1983); cf. Higgins, 3 F.2d at 897 (holding that, though law of the case "is only addressed to [the Court's] good sense," the Court retains "a right to change its mind").

(143.) Tuttle Report, supra note 74, at 35-36.

(144.) Tuttle Report, supra note 74, at 35. ("The precise definition of the finality principle applicable to this case appears to be somewhat cloudy. No party has offered an explanation or authority that seems fully satisfactory.").

(145.) Arizona v. California, 460 U.S. at 618-19 (emphasis added).

(146.) Id. at 643.

(147.) Id. at 626.

(148.) See, e.g., McCarren v. Springfield, 464 U.S. 942, 944 (1983) (Rehnquist, J., dissenting from denial of certiorari) ("A party that has had an opportunity to litigate the question of subject matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations--both subject matter and personal." (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982))); Federated Dep't Stores v. Moitie, 452 U.S. 394, 399 (1981) ("In this case, the Court of Appeals conceded that the 'strict application of the doctrine of res judicata' required that Brown II be dismissed.... The court, however, declined to dismiss Brown II because, in its view, it would be unfair.... We believe that such an unprecedented departure from accepted principles of res judicata is unwarranted.").

(149.) Arizona v. California, 460 U.S. at 626 ("Because we have determined that the principles of res judicata advise against reopening the [decree], and that Article IX does not demand that we do so, it is unnecessary to resolve the bitterly contested question of the extent to which States have detrimentally relied on the 1964 Decree." (emphasis added)).

(150.) "Detrimental reliance is certainly relevant in a balancing of the equities when determining whether changed circumstances justify modification of a Decree.... [B]ut even the absence of detrimental reliance cannot open an otherwise final determination of a fully litigated issue. Finality principles would become meaningless if an adversarially determined issue were final only if the equities were against revising it." Id.

(151.) Id. at 618. The Court claimed that, if not for the Article IX jurisdiction-saving clause of the original decree, res judicata would have applied full force to this case, rendering the Court "without power to reopen the matter." Id. at 617. This cannot be right: res judicata does not apply when a party returns to the original court in the same case to apply for relief from judgment. In fact, in other original jurisdiction cases, the Court has modified decrees despite the fact that they did not contain a jurisdiction-saving clause. See, e.g., Wyoming v. Colorado, 259 U.S. 496 (1922), decree modified, 260 U.S. 1 (1922), decree vacated and new decree entered, 353 U.S. 953 (1957).

(152.) Arizona v. California, 460 U.S. at 619 (emphasis added).

(153.) See supra Section II.B.

(154.) The student work includes all original jurisdiction activity through 1959. Note, supra note 3. This task was continued by McKusick's article, which includes all original case activity through April 25, 1993. McKusick, supra note 3. I have updated these authors' compilations by cataloguing all activity in original cases from April 25, 1993 through December 31, 2015. See infra Appendix B.

(155.) These categories are: interstate boundaries; federalism; water rights; federal-state title disputes; taxes; purported original jurisdiction cases; constitutionality of state laws; interstate nuisance; corporate activities (liquidation, merger, etc.); interstate contracts; state-citizen title disputes; riparian rights & obstruction of waterways; escheat of unclaimed property; bonds; criminal law (extradition, death penalty); state-citizen debt disputes; consul cases; miscellaneous (replevin, tort, interstate debt dispute, procedure, etc.); and unknown controversies. See infra Appendix A.

(156.) See infra Appendix A.

(157.) In original cases, the Court requires litigants to convince the Court that it should exercise its jurisdiction through a motion for leave to file. See generally Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971). As McKusick recognized, this allows the Court to serve as a discretionary gatekeeper, conforming its original jurisdiction procedures to the procedures it applies to its appellate docket. See McKusick, supra note 3, at 188-90.

(158.) See infra Appendix A.

(159.) The number of decree modifications would have been even more striking if the denominator were the number of cases with decree modification requests, rather than all cases with decrees. This way of counting would be impractical, however, because obtaining records for anything other than merits opinions is quite difficult with some of the older cases. Furthermore, using modification requests as the denominator might be somewhat misleading because parties could self-censor, choosing not to request modification if requests in similar cases were routinely denied. Regardless, even with the larger denominator that I used, the result is inconsistent with the absolute doctrine of res judicata.

(160.) Wyandotte Chems. Corp., 401 U.S. at 498-99.

(161.) Arizona v. California, 460 U.S. 605, 619 (1983).

(162.) For instance, ancient rabbinical principles provide that "[if a party] produced new testimony, which could have been obtained before, the judgment could not be reversed. But if he brought witnesses who were in a distant land ... or testimony of which he might have had no previous knowledge, a new trial was usually granted." 7 The Jewish Encyclopedia 385 (1904) (citing Hoshen Mishpat 20:1).

(163.) James Wm. Moore & Elizabeth B.A. Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 627 (1946) ("[T]he term of court was the critical factor in the district court's power over its final judgments at law and in equity."); see also United States v. Mayer, 235 U.S. 55, 68-70 (1914) (discussing this practice in strong, jurisdictional terms). But see Fed. R. Crv. P. 6(c) & advisory committee's note to Subdivision (c) (1937) (stating that expiration of a term of court does not affect the court's power); Moore & Rogers, supra, at 629 ("Historically, the term rule can be adequately explained as a rule of repose [rather than as an issue of jurisdiction or power]."). Despite the abolition of the term limitation, there are analogous time limitations imposed by Federal Rule of Civil Procedure 60(b)(5). See Fed. R. Crv. P. 60(b)(5).

(164.) The writ was called coram nobis, meaning "before us," for King's Bench cases and coram vobis, meaning "before you," for Common Pleas cases. Coram Nobis, Black's Law DICTIONARY (10th ed. 2014). This writ is available "only under circumstances compelling such action to achieve justice." United States v. Morgan, 346 U.S. 502, 511 (1954).

(165.) Note that bills of review and writs of error coram nobis were issued in the trial court; this was in contrast to writs of error, which were issued by appellate courts and directed at trial courts. See Note, Finality of Equity Decrees in the Light of Subsequent Events, 59 Harv. L. Rev. 957, 957-58 (1946). I disregard the highly technical distinction between a bill of review and a "bill in the nature of a bill of review"--the latter may lie where the decree has not been "enrolled." Whiting v. Bank of U.S., 38 U.S. (13 Pet.) 6, 13 (1839). Similarly, I avoid discussion of the writ of audita querela, a close cousin of the bill of review. Finally, note that in appellate cases, the Supreme Court has adopted its own rule for reconsidering its

appellate judgments: the Court will, on its own motion or the (brief) motion of a party, allow rehearing of any case if any Justice concurring in the judgment so desires and the term at which judgment was entered has not expired. After the term has expired, rehearing is never allowed; the decision has gone beyond the Court. See Brown v. Aspdcn's Adm'rs, 55 U.S. (14 How.) 25, 26-27 (1852).

(166.) 514 U.S. 211 (1995).

(167.) Id. at 218-19; see also id. at 219 ("[A] judicial Power is one to render dispositive judgments.... By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle." (internal quotation marks and citations omitted)).

(168.) Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 432 (1855).

(169.) Miller v. French, 530 U.S. 327, 347 (2000) (internal quotation marks and citations omitted). This idea that a court retains "continuing supervisory jurisdiction" casts doubt on the Court's contention in Nebraska v. Wyoming that a motion for modification of a decree should be treated like a motion for leave to file a bill of complaint. The analogy is unsound: a motion for leave to file a bill of complaint is a request for the Court to use its jurisdiction, and the Court has held that, for a number of reasons, it would be unwise for it to take every original jurisdiction case that comes before it. See Ohio v. Wyandotte Chcms. Corp., 401 U.S. 493, 498-99 (1971). But a motion for decree modification is a request in a pending case, a case over which the Court retains supervisory jurisdiction. If the case is truly no longer worth the Court's time, the proper disposition would be to vacate the decree, not to refuse to hear a request for modification.

(170.) Miller, 530 U.S. at 347 (internal quotation marks and citations omitted).

(171.) See, e.g., Bronson v. Schulten, 104 U.S. 410, 416-17 (1881) (contrasting federal procedure for modification with the new unified procedures of state courts in which law and equity had merged).

(172.) Fed. R. Crv. P. 60(e) ("The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela."). In criminal law, however, the ancient writ of error coram nobis is still available. See, e.g., United States v. Morgan, 346 U.S. 502, 506-07 (1954) (holding that even after he had served his entire sentence, a man convicted in federal court could file a motion in the nature of a writ of error coram nobis to set aside his prior conviction for the trial court's failure to provide counsel).

(173.) Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 234-35 (1995) ("Rule 60(b) does not provide a new remedy at all, but is simply the recitation of pre-existing judicial power."); see also Gonzalez v. Crosby, 545 U.S. 524, 540 (2005) (Stevens, J., dissenting) ("Rule 60(b) reflects and confirms the courts' own inherent and discretionary power, firmly established in English practice long before the foundation of our Republic, to set aside a judgment whose enforcement would work inequity." (internal quotation marks omitted)).

(174.) See Fed. R. Crv. P. 60(b)(5).

(175.) For a modern application, see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992) ("Once a moving party has met its burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whether the proposed modification is suitably tailored to the changed circumstance.").

(176.) See infra note 181 and accompanying text.

(177.) Justice Story explained this succinctly: "The new matter must be relevant and material, and such, as if known, might probably have produced a different determination. But it must be such as the party, by the use of reasonable diligence, could not have known, for laches or negligence destroys the title to relief." Southard v. Russell, 57 U.S. (16 How.) 547, 551 (1853) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence 326-27 (1846)); see also Ricker v. Powell, 100 U.S. 104, 107 (1879) ("[A modification pursuant to a bill of review] may be refused, although the facts, if admitted, would change the decree, when the court, looking to all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause, unadvisable." (quoting JOSEPH STORY, COMMENTARIES ON EQUITY Pleadings 332 (2d ed. 1840))). As in other equitable discretion circumstances, the interests

of the parties are not viewed in isolation. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (holding that where there exists a threshold ground for considering modification (step one), defendant's lack of diligence is not dispositive because public interests must also be weighed in the balance of the equities).

(178.) With respect to step two, the trial court has great discretion to balance "[t]he policy of the law to favor a hearing of a litigant's claim on the merits" against "the desire to achieve finality in litigation." 11 Charles Alan Wright et al., Federal Practice and Procedure [section] 2857 (3d ed. 2012). The court's inquiry is "equitable, often fact-intensive," and the court may consider a variety of factors in addition to those that are explicitly listed in Rule 60. Gonzalez, 545 U.S. at 540 (Stevens, J., dissenting). Such factors "include the diligence of the movant, the probable merit of the movant's underlying claims, the opposing party's reliance interests in the finality of the judgment, and other equitable considerations." Id. (citing Plaut, 514 U.S. at 233-34; 11 Charles Alan Wright et al., Federal Practice and Procedure [section] 2857 (2d ed. 1995 & Supp. 2004)).

(179.) See, e.g., Miller v. French, 530 U.S. 327, 347 (2000).

(180.) See Note, supra note 165, at 958 (describing some sixteenth-century precursors to the Ordinances).

(181.) Id. at 959 n.9 (quoting 7 Francis Bacon, The Works of Francis Bacon 759 (1879)).

(182.) See Fed. R. Civ. P. 60(a).

(183.) Uservo, Inc. v. Selking, 28 N.E.2d 6i, 63-64 (Ind. 1940).

(184.) Fed. R. Civ. P. 60(b)(2). Also, two grounds not mentioned by Lord Bacon are explicitly listed in Rule 60(b) and might be considered subspecies of new evidence. Fed. R. Civ. P. 60(b)(1), (3) ("mistake, inadvertence, surprise, or excusable neglect" and "fraud"); see, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245 (1944) ("Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments.").

(185.) See generally Note, supra note 165, at 960.

(186.) Horne v. Flores, 557 U.S. 433, 434 (2009) ("[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate [federal law] or . . . flow from such a violation." (quoting Milliken v. Bradley, 433 U.S. 267, 282 (1977))).

(187.) Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 578 (1851).

(188.) Act of Aug. 31, 1852, [section][section] 6-7,10 Stat. no, 112.

(189.) Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 436 (1855).

(190.) In System Federation No. 91 v. Wright, 364 U.S. 642 (1961), for instance, parties entered a consent decree prohibiting discrimination against nonunion railway employees, which was against the law at the time. Id. at 643. When Congress modified the relevant statute to allow unions, the Court allowed the trial court to modify the decree. Id. at 652-53.

(191.) "It now appears well established that an issuing court may, upon proper showing of change in circumstances, modify or vacate an existing 'permanent' injunction...." Note, supra note 165, at 960.

(192.) Louisiana v. Mississippi, 516 U.S. 22 (1995).

(193.) Nebraska v. Wyoming, 515 U.S. 1 (1995).

(194.) See, e.g., Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942) (in affirming the modification of a decree, asking "whether the change served to effectuate or to thwart the basic purpose of the original consent decree"); Am. Press Ass'n v. United States, 245 F. 91, 94 (7th Cir. 1917) (directing trial court to enter a supplemental decree to modify an earlier antitrust decree in light of changed factual circumstances in the newspaper industry). Of course, while changes in circumstances were just as common in years past, long-term decrees were not. Therefore the issue is more salient today.

(195.) 286 U.S. 106,119 (1932) (Cardozo, J.).

(196.) See, e.g., SEC v. Warren, 583 F.2d 115, 119 (3d Cir. 1978) ("The Court's considerations in rejecting modification of the injunction [in Swift] must be viewed in the context of the unusual conditions before it, the public interest, and the perceived continuing danger to the nation's economy."); King-Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 34-35 (2d Cir. 1969); Jost, supra note 79, at 1132-52 (outlining the various reasons for modifying a decree); Marc I. Steinberg, SEC and Other Permanent Injunctions--Standards for Their Imposition, Modification, and Dissolution, 66 Cornell L. Rev. 27, 71 (1980) (criticizing the Swift test and instead proposing an ad hoc balancing test that considers a variety of factors). Even the Supreme Court itself demonstrated greater flexibility than Swift would suggest. See, e.g., United States v. United Shoe Mach. Corp., 391 U.S. 244, 248 (1968) ("The District Court misconceived the thrust of this Court's decision in Swift."); Milk Wagon Drivers Union, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 298 (1941) ("Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted.").

(197.) 706 F.2d 956 (2d Cir. 1983).

(198.) Id. at 967.

(199.) 502 U.S. 367 (1992).

(200.) Id. at 380.

(201.) Id.

(202.) Id. (quoting Ry. Emps. v. Wright, 364 U.S. 642, 647 (1961)).

(203.) Id. ("That Rule, in providing that, on such terms as are just, a party may be relieved from a final judgment or decree where it is no longer equitable that the judgment have prospective application, permits a less stringent, more flexible standard.").

(204.) Id. at 381.

(205.) Id.

(206.) Id. (quoting Heath v. De Courcy, 888 F.2d 1105,1109 (6th Cir. 1989)).

(207.) See, e.g., Horne v. Flores, 557 U.S. 433, 450 (2009).

(208.) 540 U.S. 431, 441-42 (2004).

(209.) 557 U.S. at 447-48.

(210.) Id.

(211.) Id. at 447-49.

(212.) Id. at 448.

(213.) See id.

(214.) See id. at 448-49.

(215.) See, e.g., Gerald N. Rosenberg, The Politics of Consent: Party Incentives in Institutional Reform Consent Decrees, in CONSENT AND ITS DISCONTENTS: POLICY ISSUES IN CONSENT DECREES 13, 29 (Andrew Rachlin ed., 2006) (describing reports of state officials colluding with plaintiffs to bring institutional reform lawsuits against their agencies).

(216.) Though not especially relevant to the original jurisdiction, the rule specific to institutional reform litigation is, of course, extremely important in its own right. See generally Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976) (discussing the increasing prevalence of institutional reform litigation).

(217.) See supra notes 180-181 and accompanying text.

(218.) Though I believe this list is relatively complete, in theory it is non-exhaustive. There is a catchall provision in the Federal Rules of Civil Procedure allowing a court to grant a modification for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6).

(219.) I would include in this category evidence of "fraud" and of "mistake, inadvertence, surprise, or excusable neglect." See Fed. R. Crv. P. 60(b)(1), (3).

(220.) In non-original jurisdiction cases, the court might also ask a fourth question: whether federalism concerns require devolution of power under the decree back to state officials.

(221.) See supra note 178 and accompanying text.

(222.) Cf. Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 609 (7th Cir. 1986) (Swygert, J., dissenting) (arguing that "[a] quantitative approach may be an appropriate and useful heuristic device in determining negligence in tort cases . . . [because] [t]he judgment of the district judge in a tort case must be definite; [however,] the judgment of the district judge in an injunction proceeding cannot, by its very nature, be as definite").

(223.) Arizona v. California, 460 U.S. 605, 626 (1983).

(224.) 311 U.S. 107 (1940); see supra Section II.B.

(225.) 132 S. Ct. 1072 (2012) (mem.).

(226.) 516 U.S. 22,27 (1995).

(227.) 340 U.S. 859, 859 (1950).

(228.) Id.

(229.) 381 U.S. 139 (1965).

(230.) Id. at 142.

(231.) Id.

(232.) Id. at 148.

(233.) Id. at 161-67.

(234.) 283 U.S. 473,476 (1931).

(235.) Id. at 477.

(236.) Id. at 483.

(237.) 290 U.S. 237, 238 (1933).

(238.) Id. at 240.

(239.) Determining how the Court disposed of a case can be challenging. For instance, in Minnesota v. Hitchcock, 185 U.S. 373, 402 (1902), the Court disposed of the case as follows: "For these reasons we are of opinion that the claim of Minnesota to these lands cannot be sustained, and a decree will be entered in favor of the defendants dismissing the bill." Despite the use of the words "decree" and "dismissing," I classified the case as a "merits" determination because the Court considered the merits of the plaintiffs claim and ruled against it. In general, my guiding principle was that either a denial or a dismissal was nevertheless a "merits" determination if the Court considered the merits of the plaintiff s claim before entering judgment. See, e.g., Iowa v. Slimmer, 248 U.S. 115 (1918) (although the Court denied leave to file, I classified the case as "merits"); Missouri v. Kentucky, 78 U.S. (11 Wall.) 395 (1870) (although the case was dismissed, I classified it as "merits"). I also classified as "merits" a case that entered a money judgment at law.

(240.) "Federalism" cases involve questions of federal-state balance, mainly state objections to the constitutionality of federal statutes, regulations, or actions.

(241.) The "Water Rights" category includes cases seeking injunctions to prevent water diversions; cases involving compacts for the division of water rights; and equitable apportionment cases.

(242.) "Purported Original Jurisdiction Cases" were unsuccessful attempts to invoke the Court's original jurisdiction in novel ways.

(243.) "Constitutionality of State Laws" cases involve state challenges to the constitutionality of other states' laws, such as dormant commerce clause cases.

(244.) Note that "State-Citizen Title Dispute" cases are obsolete (1895-1924).

(245.) Note that "State-Citizen Debt Dispute" cases are obsolete (1792,1872,1875).

(246.) Niki L. Pace, U.S. Supreme Court Rejects Mississippi Water Suit Against Memphis, WaterLog, Feb. 2010, at 4, http://masglp.0lemiss.edu/Water%20L0gAVL29/29.4memphis.htm [https ://perma. CC/FF84-L7N9].

(247.) The order's citations suggest that Mississippi had not demonstrated "real or substantial injury."

(248.) See Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010) (deciding on the merits of the case after it was filed with the district court in New York).

(249.) Associated Press, States Lose Supreme Court Appeal over Drug Plan, USA Today (June 6, 2006), http://usatoday30.usatoday.com/news/washington/judicial/2006-06-19-medicare -court_x.htm [https ://perma.cc/2UDY-VVQY].

(250.) See also Alabama v. North Carolina, 560 U.S. 330, 338 (2010) (suggesting that No. 131 was not within the Court's exclusive original jurisdiction because it was not "between two or more states").

(251.) See also New Hampshire v. Maine, 434 U.S. 1 (1977) (No. 64, Orig.), which led to the resolution of this case on judicial estoppel grounds.

(252.) In other words, the motion for leave to file bill of complaint was dismissed by the Clerk on the joint motion of all parties.

(253.) Descriptions of these cases, and a catalog of previous case activities, can be found in McKusick, supra note 3.

(254.) This case was formerly captioned as No. 4, Orig. and subsequently as No. 6, Orig.

(255.) Article IX remains in this decree. See supra note 133 and accompanying text.

Yale Law School, J.D. expected 2017. I offer warm thanks to Professor Eugene Fidell, Jane Ostrager, and Joseph Nawrocki for their role in helping this Note take root; to Professor Nicholas Parrillo for detailed and careful comments that helped it grow; and to Jennifer Yun and the editors of the Yale Law Journal for their exemplary pruning. Most importantly, thanks to my ever-supportive family: Jeffery, Misty, Alyssa, Joshua, and Julia.
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Title Annotation:V. Locating "General Principles of Finality and Repose": From Lord Bacon to Rufo through Conclusion, with footnotes and appendices, p. 1909-1938
Author:Mandilk, James G.
Publication:Yale Law Journal
Date:May 1, 2016
Words:17034
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