Law Commons^™

Is The Statutory 60-Day Deadline For Filing A Petition For Review Of A Final Mspb Order Jurisdictional?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: The Department of Defense (DOD) furloughed employee Stuart R. Harrow in 2013. Harrow timely challenged DOD’s decision before an administrative judge, who affirmed it. Harrow timely appealed the judge’s decision to the Merit System Protection Board (MSPB or “Board”), which could not act on the appeal for over five years because it lacked a quorum. On May 11, 2022, the MSPB issued a final order, affirming the judge’s decision. However, Harrow did not learn of the decision until August 30. Harrow promptly filed a petition to review the Board’s order with the Federal Circuit, which denied …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

Boldly Marching Through Closed Doors: The Experiences Of The Earliest Female Attorneys In Their Own Words, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

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

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

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."

Searching For Federal Judicial Power: Article Iii And The Foreign Intelligence Surveillance Court, Peter Margulies

Law Faculty Scholarship

No abstract provided.

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

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 …

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier

Law Faculty Scholarship

The transnational class action-a class action in which a portion of the class consists of non-US claimants-is here to stay Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the "home" courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.

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

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 …

Equitable Balancing In The Age Of Statutes, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

The Military Commissions Act, Coerced Confessions, And The Role Of The Courts, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz

Law Faculty Scholarship

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who …

Judging Terror In The "Zone Of Twilight" Exigency, Institutional Equity, And Procedure After September 11, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Culture Of Quiescence, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Free Exercise Of Religion In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.

In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and …

Procedural Due Process: The Original Understanding, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.