Law Commons^™

A Textualist Defense Of A New Collateral Order Doctrine, Adam Reed Moore

Notre Dame Law Review Reflection

As a general rule, federal appellate courts have jurisdiction over “final decisions.” Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward. That is because the Court has left the statutory text by the wayside. The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule. This rule would allow appeals from final judgments only. But this alternative is not the product of close textual analysis. …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Aals Federal Courts Section Newsletter, Katherine Mims Crocker, Celestine Richards Mcconville

Popular Media

No abstract provided.

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner

Law Faculty Publications

The power of federal courts to act is circumscribed not only by the limits of subject matter jurisdiction, but also by various justiciability doctrines. Article III of the Constitution vests the judicial power of the United States in the Supreme Court and such inferior courts as Congress creates. That power is limited to deciding cases and controversies. It does not permit federal courts to provide advisory opinions when there is not a real dispute between the parties. Based on that constitutional limit, and related prudential concerns, the Court has developed a variety of justiciability requirements limiting which cases can be …

Brief Of Law Professors As Amici Curiae In Support Of Plaintiff-Appellee, Evan J. Criddle

Briefs

No abstract provided.

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

William & Mary Law Review

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

You’Re Out!: Three Strikes Against The Plra’S Three Strikes Rule, Kasey Clark

Georgia Law Review

As federal court caseloads increased in the twentieth century, concerned jurists and academics pointed their fingers at many potential culprits. One culprit in particular, however, caught the attention of Congress: suits brought by prisoners. To curtail what it believed was an influx of frivolous prisoner litigation, Congress passed the Prison Litigation Reform Act (PLRA) in 1996. One provision of the PLRA, known as the “three strikes rule,” prohibits a prisoner from proceeding in forma pauperis if three or more of the prisoner’s prior actions or appeals have been dismissed as frivolous or malicious or for failure to state a claim …

State Separation Of Powers And The Federal Courts, Ann Woolhandler

William & Mary Bill of Rights Journal

The cases discussed herein mostly surfaced in the regulatory era of the latter half of the nineteenth century and the early twentieth century. This Article first discusses arguments as to state delegations of legislative power, and the Court’s rejection of legislative-style deference that state agencies often argued for. This Article next discusses the Court’s decisions as to state adjudicative bodies, and its refusal to treat state agency adjudicators as full-fledged courts. This Article then addresses the Court’s response to arguments for unreviewable executive discretion and to laws allowing delegations to private parties. It then addresses whether the discussion sheds light …

Thoughts On Law Clerk Diversity And Influence, Todd C. Peppers

Scholarly Articles

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking …

There Is No Such Thing As Circuit Law, Thomas B. Bennett

Faculty Publications

Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders.

This article argues that the notion of circuit law is nonsensical and undesirable …

How Biden Can Continue Making The Federal Courts Better, Carl Tobias

Law Faculty Publications

From 2017 until 2020, former President Donald Trump and the Republican Senate majority nominated and confirmed record-breaking numbers of appellate court judges. This emphasis undermined ethnic, gender, sexual orientation, and experiential diversity as well as ideological balance on these courts and neglected to address persistent district court and emergency vacancies. Moreover, to achieve these historic confirmation levels, the GOP Senate majority eviscerated or altered certain rules and customs of regular order, which included the creation of a circuit-level exception to the blue slip process. President Joe Biden, in turn, has pledged to rectify the damage to the courts and the …

Hallows Lecture: Complexity And Contradiction In American Law, Gerard E. Lynch

Marquette Law Review

None.

The Shape Of Citizenship: Extraordinary Common Meaning And Constitutional Legitimacy, David N. Mcneill, Emily Tucker

CPT Papers & Reports

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the …

Religious Convictions, Anna Offit

Faculty Journal Articles and Book Chapters

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

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 …

The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard

Faculty Articles

Lawyers have sworn an oath to be admitted to the Bar since the beginnings of the Anglo-American legal profession. The oath serves several extremely important purposes. First, it is the formal act that admits an individual into the Bar and confers upon the oath taker the right to perform the duties of an attorney in the jurisdiction in which the oath is given. Second, the oath admits the new attorney to the broader world of the legal profession and signifies that the new attorney has been judged by the oath giver as worthy of the right to practice law. Third, …

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 …