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Articles 1 - 8 of 8
Full-Text Articles in Law
The Constitution And Democracy In Troubled Times, John M. Greabe
The Constitution And Democracy In Troubled Times, John M. Greabe
Law Faculty Scholarship
Does textualism and originalism approach positively impact democracy?
Revisiting And Confronting The Federal Judiciary Capacity “Crisis”: Charting A Path For Federal Judiciary Reform, Ryan G. Vacca, Peter S. Menell
Revisiting And Confronting The Federal Judiciary Capacity “Crisis”: Charting A Path For Federal Judiciary Reform, Ryan G. Vacca, Peter S. Menell
Law Faculty Scholarship
[excerpt] "This Article revisits and confronts the growing caseload and congestion problems plaguing the federal judiciary. It begins by tracing the history and political economy surrounding judiciary reform. It then updates data on caseloads, processing times, certiorari petitions, en banc review, and other measures of judicial performance, revealing expanding caseloads and growing complexity and fragmentation of federal law. Part III explores the political, institutional, and human causes of the logjam over judiciary reform and offers an antidote: a commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would …
The Federal Circuit As An Institution, Ryan G. Vacca
The Federal Circuit As An Institution, Ryan G. Vacca
Law Faculty Scholarship
The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.
This chapter begins with an overview of the concerns existing before creation of …
Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe
Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe
Law Faculty Scholarship
[exerpt] "Examine a timelier topic: the court's decision to effectively punt on the major religious freedom and partisan gerrymandering cases it was poised to decide this term. For the court's restrain in these cases may have some relation to our turbulent political times."
Emerging Constitutional Conflicts And The Role Of Courts, John M. Greabe
Emerging Constitutional Conflicts And The Role Of Courts, John M. Greabe
Law Faculty Scholarship
[Excerpt] "When a court exercises judicial review, it tells Congress, the executive branch or a state to refrain from action that is under way or to take some action that is not being taken. Either way, a democratically accountable institution is told that it cannot do what the people (presumably) want it to do, or that it must do what the people (presumably) do not want it to do."
Bypassing Civil Gideon: A Legislative Proposal, Erin B. Corcoran
Bypassing Civil Gideon: A Legislative Proposal, Erin B. Corcoran
Law Faculty Scholarship
Eighty-four percent of immigrants appearing before immigration judges are unrepresented. Immigration judges are overwhelmed with the dual role of adjudicating cases and serving as counsel to pro se individuals appearing before them. In addition, due to the rising costs of retaining a lawyer, immigrants are turning to immigrant consultants. These incompetent and unscrupulous individuals are preying on vulnerable immigrants and engaging in the unauthorized practice of law. In addressing unmet legal needs for immigrants, most advocacy efforts for immigrants regarding the acquisition of competent representation focus on persuading the courts that immigrants appearing before an immigration judge have a constitutional …
Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe
Law Faculty Scholarship
The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca
Law Faculty Scholarship
When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …