Law Commons^™

A Textualist Defense Of A New Collateral Order Doctrine, Adam Reed Moore

Notre Dame Law Review Reflection

As a general rule, federal appellate courts have jurisdiction over “final decisions.” Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward. That is because the Court has left the statutory text by the wayside. The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule. This rule would allow appeals from final judgments only. But this alternative is not the product of close textual analysis. …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

William & Mary Law Review

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

You’Re Out!: Three Strikes Against The Plra’S Three Strikes Rule, Kasey Clark

Georgia Law Review

As federal court caseloads increased in the twentieth century, concerned jurists and academics pointed their fingers at many potential culprits. One culprit in particular, however, caught the attention of Congress: suits brought by prisoners. To curtail what it believed was an influx of frivolous prisoner litigation, Congress passed the Prison Litigation Reform Act (PLRA) in 1996. One provision of the PLRA, known as the “three strikes rule,” prohibits a prisoner from proceeding in forma pauperis if three or more of the prisoner’s prior actions or appeals have been dismissed as frivolous or malicious or for failure to state a claim …

State Separation Of Powers And The Federal Courts, Ann Woolhandler

William & Mary Bill of Rights Journal

The cases discussed herein mostly surfaced in the regulatory era of the latter half of the nineteenth century and the early twentieth century. This Article first discusses arguments as to state delegations of legislative power, and the Court’s rejection of legislative-style deference that state agencies often argued for. This Article next discusses the Court’s decisions as to state adjudicative bodies, and its refusal to treat state agency adjudicators as full-fledged courts. This Article then addresses the Court’s response to arguments for unreviewable executive discretion and to laws allowing delegations to private parties. It then addresses whether the discussion sheds light …

Hallows Lecture: Complexity And Contradiction In American Law, Gerard E. Lynch

Marquette Law Review

None.

The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa

St. John's Law Review

(Excerpt)

An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of …

Federal Courts: Article I, Ii, Iii, And Iv Adjudication, Laura K. Donohue, Jeremy Mccabe

Catholic University Law Review

The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, …

Rebuilding The Federal Circuit Courts, Merritt E. Mcalister

Northwestern University Law Review

The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to nonjudicial decision-makers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes judicial resources—including oral argument and judicial scrutiny—to a select few. This Article begins to reimagine the courts …

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …

The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

St. Mary's Law Journal

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon

University of Cincinnati Law Review

No abstract provided.

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Pepperdine Law Review

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

The Nature Of Standing, Matthew Hall, Christian Turner

William & Mary Bill of Rights Journal

Most academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: "The judicial Power shall extend to all Cases, in Law and Equity," arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of …

Beyond Qualified Immunity, Fred O. Smith Jr.

Michigan Law Review Online

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium.

What Happens In State Court Stays In State Court Comity And The Relitigation Exception To The Anti-Injunction Act, Juan Antonio Solis, Rory Ryan

FIU Law Review

No abstract provided.

Slapps Across America, Jack Toscano

Touro Law Review

The Supreme Court’s landmark decision in New York Times v. Sullivan was meant to protect our fundamental right to free speech from defamation lawsuits. However, Strategic Lawsuits Against Public Participation, known as SLAPPS, continue to chill free speech through weak but expensive to defend defamation lawsuits. In response to SLAPPs many states have passed anti-SLAPP statutes that are meant to identify SLAPPs, quickly dismiss SLAPPS, and punish plaintiffs who bring SLAPPs. A difficult issue for federal courts throughout the country is whether these state anti-SLAPP statutes should apply in federal courts. This Note examines the Supreme Court opinions in Shady …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Michigan Law Review

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …

In Defense Of (Circuit) Court-Packing, Xiao Wang

Michigan Law Review Online

Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

"Downright Indifference": Examining Unpublished Decisions In The Federal Courts Of Appeals, Merritt E. Mcalister

Michigan Law Review

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.”

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

Toward Establishing A Pre-Extinction Definition Of "Nationwide Injunctions, Portia Pedro

University of Colorado Law Review

No abstract provided.

How Animal Science Products, Inc. Plays A Role In The China And U.S. International Relations Saga, Tessa V. Mears

University of Miami Inter-American Law Review

“How Animal Science Products, Inc. Plays a Role in the China and U.S. International Relations Saga” takes a look at a June 2018 Supreme Court decision that ruled federal courts are not bound to defer to a foreign government’s interpretation of its own law. This paper discusses the pros and cons of absolute deference to foreign governments in these instances, in addition to examining the effectiveness of foreign amicus briefs in antitrust cases before the Supreme Court. This paper finishes with a discussion on the current state of international relations China and the U.S., with a summary of where the …

The States Have Spoken: Allow Expanded Media Coverage Of The Federal Courts, Mitchell T. Galloway

Vanderbilt Journal of Entertainment & Technology Law

Since the advent of film and video recording, society has enjoyed the ability to capture the lights and sounds of moments in history. This innovation left courts to determine what place, if any, such technology should have inside the courtroom. Refusing to constrain the future capacity of this technology, the Supreme Court "punted" on this issue until a time when this technology evolved past its initial disruptive nature. Throughout the past forty-five years, the vast majority of state courts have embraced the potential of cameras in the courtroom and have created policies governing such use. In contrast, the federal judiciary …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …