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Full-Text Articles in Law

Rebuilding The Federal Circuit Courts, Merritt E. Mcalister Mar 2022

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 …


The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon Oct 2021

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 Oct 2021

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 …


The Nature Of Standing, Matthew Hall, Christian Turner Feb 2021

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 …


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Nov 2020

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 Oct 2020

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 …


The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey Apr 2020

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 …


What Are The Judiciary’S Politics?, Michael W. Mcconnell May 2018

What Are The Judiciary’S Politics?, Michael W. Mcconnell

Pepperdine Law Review

What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated elite. Second, the federal judiciary represents past political majorities. Third, the federal judiciary is more politically balanced than the legislative or executive branches. Fourth, the federal judiciary is organized by regions, and between those regions there is significant diversity. Fifth, to the extent that the judiciary leans one way or the other, it leans toward the …


The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton Apr 2018

The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton

Michigan Law Review

A review of Richard A. Posner, The Federal Judiciary.


The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner Jan 2018

The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner

Indiana Law Journal

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude …


Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg Nov 2017

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does not resolve …


Confirm Judge Koh For The Ninth Circuit, Carl Tobias Dec 2016

Confirm Judge Koh For The Ninth Circuit, Carl Tobias

Washington and Lee Law Review Online

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …


Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich May 2015

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …


Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber Dec 2014

Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber

Pace Law Review

In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate …


Customary International Human Rights Law In Domestic Court Decisions, Gordon A. Christenson Oct 2014

Customary International Human Rights Law In Domestic Court Decisions, Gordon A. Christenson

Georgia Journal of International & Comparative Law

No abstract provided.


The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane Jan 2014

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …


The Ghost Of Crowell V. Benson And The Residual Role Of Judges And Agencies Under Federal Law, Linda R. Hirshman Apr 2013

The Ghost Of Crowell V. Benson And The Residual Role Of Judges And Agencies Under Federal Law, Linda R. Hirshman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik Jul 2012

Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik

Indiana Law Journal

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …


Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise May 2012

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …


Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson Jan 2012

Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson

University of Michigan Journal of Law Reform Caveat

Judges are, without question, vital to our justice system. They interpret, adapt, and apply the law. They resolve disputes for the parties to the case at issue and provide guidance to others in analogous situations. They are the gears that keep the wheels of justice moving. Unfortunately, in the case of our federal courts, many of these gears are missing. Eighty-three of our 874 federal judgeships are vacant, including thirty-four that have been declared “judicial emergencies.” Our Constitution vests the President with the power to nominate federal judges and the Senate with the power to confirm or reject them, and …


Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster Jan 2012

Understanding The Value Of Judicial Diversity Through The Native American Lens, Paige E. Hoster

American Indian Law Review

No abstract provided.


Gender, Affirmative Action, And Recruitment To The Federal Bench, Elliot E. Slotnick Sep 2010

Gender, Affirmative Action, And Recruitment To The Federal Bench, Elliot E. Slotnick

Golden Gate University Law Review

In the analysis which follows, an effort will be made to assess the historical record of the appointment of women to the federal bench. Extended consideration will be given to the Carter administration's judicial recruitment behavior in an effort to assess the thrust and implications of the President's affirmative action concerns. How successful was Carter in appointing women to the federal judiciary and how did the women appointees differ, if at all, from their male colleagues? Do women appointees follow a different "path" to the bench than males? Did affirmative action "dilute" the quality of the federal bench as many …


Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander Jan 2008

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …


A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko Jan 2007

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.


Federal Court Special Masters: A Vital Resource In The Era Of Complex Litigation, Mark A. Fellows, Roger S. Haydock Jan 2005

Federal Court Special Masters: A Vital Resource In The Era Of Complex Litigation, Mark A. Fellows, Roger S. Haydock

William Mitchell Law Review

This article is dedicated to all those who have served as special masters in federal court. After serving as a judicial master, it is easy to believe in the importance of the role in our grand system of justice. After reading this article, we hope it will be clear how vital masters are to everyone receiving fair, just, and expedient civil justice.


Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer Jan 2005

Decline Of Title Vii Disparate Impact: The Role Of The 1991 Civil Rights Act And The Ideologies Of Federal Judges, Michael J. Songer

Michigan Journal of Race and Law

This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood …


What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner Jan 1999

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …


Leaving A Legacy On The Federal Courts, Carl Tobias Jan 1999

Leaving A Legacy On The Federal Courts, Carl Tobias

University of Miami Law Review

No abstract provided.


Introduction To Mercer Law Review Symposium On Federal Judicial Independence, L. Ralph Mecham Mar 1995

Introduction To Mercer Law Review Symposium On Federal Judicial Independence, L. Ralph Mecham

Mercer Law Review

No abstract provided.


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Jan 1995

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

University of Michigan Journal of Law Reform

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …