Law Commons^™

The "Inherent Powers" Of Multidistrict Litigation Courts, Lynn A. Baker

Pepperdine Law Review

Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

An Unconstitutional Band-Aid: The Practice Of Sitting By Designation In The Federal Judiciary, Michaela Conley

Roger Williams University Law Review

No abstract provided.

Biden, Bennet, And Bipartisan Federal Judicial Selection, Carl Tobias

University of Colorado Law Review Forum

No abstract provided.

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 …

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

Dickinson Law Review (2017-Present)

No abstract provided.

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 …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

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 …

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.

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.

The Corporate Capture Of The Federal Courts: An Address From October 2, 2013, Elizabeth Warren

University of the District of Columbia Law Review

No abstract provided.

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 …

“Dealing With The Appellate Caseload Crisis”: The Report Of The Federal Courts Study Committee Revisited, Roger J. Miner

NYLS Law Review

No abstract provided.

Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

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 …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Legislation and Policy Brief

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue.

The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Robert C. Byrd And The Fourth Circuit Court Of Appeals: An Addendum Respecting Judge Robert Bruce King, M. Blane Michael

West Virginia Law Review

No abstract provided.

Access To U.S. Federal Courts As A Forum For Human Rights Disputes: Pluralism And The Alien Tort Claims Act, Christiana Ochoa

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

Power, Convenience, And The Elimination Of Personal Jurisdiction In The Federal Courts, Robert Haskell Abrams

Indiana Law Journal

No abstract provided.

The Applicability Of Rule 23(E) To Precertification Proceedings: The Functional Approach Applied, Kevin Silverang

Villanova Law Review

No abstract provided.

Federal Practice And Procedure - Comment - Appealability And Finality In The Third Circuit - Is The United States Supreme Court More Appealing Than The Third Circuit, Gary A. Rome

Villanova Law Review

No abstract provided.

Shaffer V. Heitner: A Death Warrant For The Transient Rule Of In Personam Jurisdiction, Daniel O. Bernstine

Villanova Law Review

No abstract provided.

Attorneys' Fees, Various Editors

Villanova Law Review

No abstract provided.

Federal Practice And Procedure, Various Editors

Villanova Law Review

No abstract provided.

The Federal Courts And Prison Reform, Patrick Baude

Indiana Law Journal

No abstract provided.

An Example Of Judicial Legislation: The Third Circuit's Expansion Of Exemption 6 Of The Freedom Of Information Act To Include Union Authorization Cards, Martin J. Sobol

Villanova Law Review

No abstract provided.