Law Commons^™

Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman

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For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation …

Dignity And Civility, Reconsidered, Leah Litman

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People often talk about the Chief Justice, Justice Kagan, and Justice Breyer as the institutionalists on the modern Supreme Court. And that’s true, they are. Those Justices care about the Court as an institution and the Court’s reputation. They do not want people to look at the Court as a set of politicians in robes; and they do not want people to see judges as having ideological or partisan agendas. That is how they think of themselves, and they are willing to make compromises to maintain that image of the Court, and to set aside their personal beliefs in order …

New Metrics And The Politics Of Judicial Selection, Jeremy Kidd

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Recent Supreme Court nomination hearings have become increasingly rancorous, revealing the increasing political importance of the judiciary in our system of government. We need to know more about those who are chosen to wield this power, but those being considered have strong incentives to obscure all but the most basic characteristics of integrity, decorum, intellect, and courtesy. One of the most important decisions in our democracy is therefore made with far less information than would be ideal. Only through development of new metrics and refinement of existing metrics can we begin to cut through obfuscation and identify the goals and …

“You Can't Afford To Flinch In The Face Of Duty”: Judge William Augustus Bootle And The Desegregation Of The University Of Georgia, Patrick Emery Longan

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On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a …

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum

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This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.

As part of the independence piece of the …

Tribute To Judge Robert Katzmann, Lindsay Nash

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No abstract provided.

Measuring Selection Bias In Publicly Available Judicial Opinions, Alexander A. Reinert

Articles

To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case.

This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, …

The Critical Tax Project, Feminist Theory, And Rewriting Judicial Opinions, Anthony C. Infanti, Bridget J. Crawford

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In this essay, the authors discuss the intellectual foundations for their co-edited book, Feminist Judgments: Rewritten Tax Opinions (2017), the first in a series of subject-matter specific volumes published in the U.S. Feminist Judgments Series by Cambridge University Press. Using only the facts and precedents in existence at the time of the original opinion, the contributors to this and other feminist judgments projects around the globe seek to show how application of feminist perspectives could impact, or even change, the holding or reasoning of judicial decisions. Underlying Feminist Judgments: Rewritten Tax Opinions is the belief that the study of taxation …

An Unfinished Dialogue: Congress, The Judiciary, And The Rules For Federal Judicial Misconduct Proceedings, Arthur D. Hellman

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Federal judges can be impeached and removed from office for “high crimes and misdemeanors,” but what can be done to investigate and remedy less serious misconduct? Congress gave its answer 40 years ago when it passed the Judicial Conduct and Disability Act of 1980. The Act emerged from a series of complex interactions between Congress and the judiciary that could hardly be replicated today. Initially there was strong support, particularly in the Senate, for a centralized, “strictly adjudicatory” system, including a provision for removal of judges without impeachment. Over the course of several years, however, the judiciary persuaded Congress to …

The Most Revealing Word In The United States Report, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …