Law Commons^™

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

Rebuilding The Federal Circuit Courts, Merritt E. Mcalister

UF Law Faculty Publications

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 …

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

UF Law Faculty Publications

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live.

Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

Missing Decisions, Merritt E. Mcalister

UF Law Faculty Publications

Significant numbers of federal appellate merits terminations—those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases.

Although scholars have long considered how publication practices shapes access to court decisions—especially at the district court level—this is the first work to analyze commercial database access to unpublished federal appellate decisions. Since at least 2007, when a …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

UF Law Faculty Publications

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

Litigating Welfare Rights: Medicaid, Snap, And The Legacy Of The New Property, Andrew Hammond

UF Law Faculty Publications

In 2017, the Republican-controlled Congress was poised to make deep cuts to the nation’s two-largest anti-poverty programs: Medicaid and the Supplemental Nutrition Assistance Program (SNAP), commonly known as “food stamps.” Yet, despite having a unified, GOP-led federal government for the first time in over a decade, those efforts failed. Meanwhile, the Trump Administration and its allies in state government continue to pursue different strategies to roll back entitlements to medical and food assistance. As public interest lawyers challenge these agency actions in federal court , roughly five million Americans’ health insurance and food assistance hang in the balance. This Article …

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

Court-System Transparency, Lynn M. Lopucki

UF Law Faculty Publications

This article applies systems analysis to two ends. First, it identifies simple changes that would make the court system transparent. Second, it projects transparency's consequences. Transparency means that both the patterns across, and details of, case files are revealed to policymakers, litigants, and the public in easily understood forms. Government must make two changes to achieve court system transparency. The first is to remove the existing restrictions on the electronic release of court documents, including the requirements for registration, separate requests for each document, and monetary payment. The second - already being implemented in the federal courts - is to …

National Interests, Foreign Injuries, And Federal Forum Non Conveniens, Elizabeth T. Lear

UF Law Faculty Publications

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in …

Congress, The Federal Courts, And Forum Non Conveniens: Friction On The Frontier Of The Inherent Power, Elizabeth T. Lear

UF Law Faculty Publications

The federal forum non conveniens regime has many flaws; its most serious, however, is its lack of constitutional support. Founded upon the inherent authority of Article III, the forum non conveniens doctrine is an outlier, residing in the area over which Congress retains plenary control. The Court has long treated the forum non conveniens dismissal power as the norm against which Congress legislates. This Article argues that the time has come to reconsider this interpretive approach. In the case of peripheral inherent power rules like forum non conveniens, the prevailing presumption should be reversed. The Court, rather than Congress, should …