Law Commons^™

Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer

Faculty Publications

On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Lending A Hand Instead Of Breaking The Bank: The Imperative Need To Resolve The Circuit Split For Determining Undue Hardship For Section 523(A)(8) Student Loan Discharges, Rucha Pandit

William & Mary Business Law Review

The Bankruptcy Code permits petitioners to discharge their student debts if they are able to demonstrate that their loans impose an undue hardship. Somewhat frustratingly, the Code does not define what exactly constitutes undue hardship in the context of student loan discharges. Moreover, neither Congress nor the Supreme Court has broken its silence to offer guidance on the issue. As a result, the rest of the federal judiciary has been once again, left to its own devices.

Over the past few decades, the Brunner and totality-of-the-circumstances tests have emerged as the standards that federal circuits choose between to assess whether …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter

William & Mary Law Review

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as “THE” Rule of Evidence. The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, …

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Who And What Is A City "For"? Municipal Associational Standing Reexamined, Kaitlin Ainsworth Caruso

William & Mary Law Review Online

Cities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrineof associational standing, which nonprofits and associations use to speak for their members in court. Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

We Must Restore Americans' Faith In Our Federal Bench, A. Benjamin Spencer

Popular Media

No abstract provided.

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Judicial Credibility, Bert I. Huang

William & Mary Law Review

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge—here, as a “Bush judge” or “Clinton judge”—can influence the credibility of judicial review in …

The Judicial Reforms Of 1937, Barry Cushman

William & Mary Law Review

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

First, We'll Neuter All The Judges, A. Benjamin Spencer

Popular Media

No abstract provided.

The Federal Courts’ Rulemaking Buffer, Jordan M. Singer

William & Mary Law Review

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

William & Mary Law Review

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation of powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This Article argues that “big cases make bad theory”—that the focus on high-profile cases of this type distorts our understanding of how historical practice figures into constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, where practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role structuring and …

Is The “Arising Under” Jurisdictional Grant In Article Iii Self-Executing?, David R. Dow

William & Mary Bill of Rights Journal

No abstract provided.

Premodern Constitutionalism, Martin H. Redish, Matthew Heins

William & Mary Law Review

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last …

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Habeas Corpus Petitions In Federal And Tribal Courts: A Search For Individualized Justice, Carrie E. Garrow

William & Mary Bill of Rights Journal

No abstract provided.

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation …

In Defense Of Implied Injunction Relief In Constitutional Cases, John F. Preis

William & Mary Bill of Rights Journal

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments—one based on the historical relationship between law and equity and the other based on separation of powers principles—could quite …

Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash

Faculty Publications

No abstract provided.

Allegedly "Biased", "Intimidating," And "Incompetent" State Court Judges And The Questionable Removal Of State Law Class Actions To Purportedly "Impartial" And "Competent" Federal Courts -- A Historical Analysis Of Class Action Dispositions In Federal And State Courts, 1925-2011, Willy E. Rice

William & Mary Business Law Review

Judges as well as members of plaintiffs’ and defense bars agree: a class action is a superior, efficient, and inexpensive procedural tool to litigate disputes that present similar questions of fact and law. To be sure, corporations and insurers have a long history of filing successful class actions against each other in state courts. Yet those corporate entities convinced Congress to embrace an uncommon view: continuing to allow allegedly “hostile” and “biased” state judges and juries to hear and decide everyday consumers’ “purely substantive state law class actions” is unfair and inefficient. Responding to the plea, Congress enacted the Class …

Hybridizing Jurisdiction, Scott Dodson

Faculty Publications

Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.

This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad …

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Faculty Publications

The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC, Judge Shira A. Scheindlin-of the Zubulake v. UBS Warburg LLC2 e-discovery casespenned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches …

Horizontal Erie And The Presumption Of Forum Law, Michael S. Green

Faculty Publications

According to Erie Railroad v. Tompkins and its progeny, a federal
court interpreting state law must decide as the state’s supreme
court would. In this Article, I argue that a state court interpreting
the law of a sister state is subject to the same obligation. It must
decide as the sister state’s supreme court would.

Horizontal Erie is such a plausible idea that one might think it is
already established law. But the Supreme Court has in fact given
state courts significant freedom to misinterpret sister-state law. And
state courts have taken advantage of this freedom, by routinely presuming
that …