Law Commons^™

Navigating Beyond The Lodestar: Borrowing The Federal Sentencing Guidelines To Provide Fee-Shifting Predictability, Matthew Ahn

Dickinson Law Review (2017-Present)

The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards …

Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers

Dickinson Law Review (2017-Present)

It is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which …

How Not To Be A Federal Criminal: A Review Of Mike Chase’S How To Become A Federal Criminal And The Case For Inclusion Of His Illustrated Handbook In American Law Schools, Zachary Stendig

Dickinson Law Review (2017-Present)

No abstract provided.

Administrative Stays: Power And Procedure, Rachel Bayefsky

Notre Dame Law Review

Federal courts are often asked to issue various forms of expedited relief, including stays pending appeal. This Article explores a little examined device that federal courts employ to freeze legal proceedings until they are able to rule on a party’s request for a stay pending appeal: the “administrative” or “temporary” stay. A decision whether to impose an administrative stay can have significant effects in the real world, as illustrated by recent high-profile litigation on topics including immigration and abortion. Yet federal courts have not endorsed a uniform standard for determining whether an administrative stay is warranted or clarified the basis …

Stare Decisis And Intersystemic Adjudication, Nina Varsava

Notre Dame Law Review

Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature.

Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of …

Eliminating The Fugitive Disentitlement Doctrine In Immigration Matters, Tania N. Valdez

Notre Dame Law Review

Federal courts of appeals have declared that they may dismiss immigration appeals filed by noncitizens who are deemed “fugitives.” The fugitive disentitlement doctrine emerged in the criminal context with respect to defendants who had escaped from physical custody. Although the doctrine originated out of concerns that court orders could not be enforced against criminal fugitives, the doctrine has since crept into civil contexts, including immigration. But rather than invoking the doctrine for its originally intended purpose of ensuring that court orders could be enforced, courts now primarily invoke it for the purposes of punishment, deterrence, and protecting the dignity of …

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …

How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves

Dickinson Law Review (2017-Present)

No abstract provided.

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 …

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …