Courts Commons^™

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 …

Core And Periphery In Constitutional Law, R. George Wright

William & Mary Law Review Online

This paper embarks on an excursion through a number of the most vital constitutional rights cases, and other contexts as well, and seeks to show that the recurring judicial attempts to distinguish between core and peripheral areas within any given broad constitutional right are unnecessary and distracting. Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of any given broad constitutional right. Courts should instead focus—directly or indirectly—on their best assessment of …

A Renewed Analysis Of The Expedited Actions Rules In Texas Courts, Paula Hannaford-Agor, Lindsey Wylie, Miriam Hamilton, Brittany K. T. Kauffman, Logan Cornett, James Swearingen, Michael Houlberg, Jeffrey Tsunekawa, Michael Smith, Sheri Woodfin,

Faculty Publications

In October 2021, the Texas Office of Court Administration (OCA) and the National Center for State Courts (NCSC) returned to the question of whether the Expedited Action Rules (EARs) adopted in 2012 in Texas were continuing to have a positive impact on civil case processing. With new funding from the State Justice Institute (SJI), the NCSC, OCA, and the Institute for the Advancement of the American Legal System at the University of Denver, set out to replicate a 2016 study. Using the same research methods, the project team gathered data from the district and county courts in Dallas, Fort Bend, …

"How Exactly Does It Get Done Here?" Conducting Cross-Jurisdictional Research With Judges And Court Staff, Paula Hannaford-Agor

Faculty Publications

The legal, political, and organizational environment in which judges and court staff work affects their performance in significant ways. To ensure that researchers control for these effects, it is critical that they take sufficient time in the research design phase to identify relevant factors that might complicate their analyses or distort the interpretation of research findings. This article highlights common challenges of multijurisdictional research, including inconsistent use of terminology, differing organizational structures and procedures, and exogenous factors such as court governance, policymaking authority, funding, and local court culture. It also offers guidance to researchers on identifying and integrating these factors …

Faux Advocacy In Amicus Practice, James G. Dwyer

Faculty Publications

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

Religious Convictions, Anna Offit

Faculty Publications

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. …

Judges And Mass Incarceration, Carissa Byrne Hessick

William & Mary Bill of Rights Journal

It seems to have fallen out of fashion to talk about judges as a source of criminal justice reform. Instead, the academic literature now focuses on the role that prosecutors and legislatures have played in mass incarceration. But judges have also played an important role in the phenomenon that has come to be known as mass incarceration. Perhaps more importantly, there are things that judges could do to help reverse that trend.

Judges will sometimes say our system is too harsh. But, in the same breath they tell us the decision to create such a system and the decision to …

Another Bite At The Apple Or The Same Bite? Characterizing Habeas Petitions On Appeal As Pending Instead Of Fully Adjudicated, Gregory Winder

William & Mary Law Review

[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

William & Mary Bill of Rights Journal

More than 40 years ago, President Jimmy Carter, a Democrat, appointed 15 of the then-23 judges of the Ninth Circuit Court of Appeals. Those judges were predominantly liberal, and some were extremely liberal. Ever since then, the Ninth Circuit has been widely regarded as “a reliably liberal appeals court” that predictably issues “rulings favorable to liberal causes.” But some knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether the Ninth Circuit is indeed the liberal bastion that it is reputed to be. That is the …

Circuit Personalities, Allison Orr Larsen, Neal Devins

Faculty Publications

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …

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

Popular Media

No abstract provided.

Wal-Mart Stores, Inc. V. Texas Alcoholic Beverage Commission: The Supreme Court Misses Its "Shot" At Clarifying State Alcohol Regulations And The Commerce Clause, Josephine Battles

William & Mary Bill of Rights Journal

The Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the …

Thoughts Regarding The Application Of The Step Transaction Doctrine To The Section 351 Control Requirement And Complex Media, Inc. V. Commissioner, Philip G. Cohen

William & Mary Business Law Review

Over thirty years ago, Professor Ronald H. Jensen authored an article in the Virginia Tax Review, titled “Of Form and Substance: Tax Free Incorporations and Other Transactions Under Section 351.” Professor Jensen asserted that it was inappropriate to utilize the step transaction doctrine to determine whether the control requirement was met in a purported section 351 transaction, involving a disposition of some, or all, of the transferor’s shares even if effected by a binding contract made prior to the contribution.

Professor Jensen concluded that the courts and the Internal Revenue Service (Service) have produced a hodgepodge of intellectually inconsistent decisions …

Disclaiming Disability, Nicole Buonocore Porter

Faculty Publications

In the Americans with Disabilities Act (“ADA”) Amendments Act of 2008, Congress ordered the courts to broadly interpret the definition of disability under the ADA. For the most part, courts have followed that instruction, but there are still too many instances in which they have not. One particularly pernicious error made by courts is relying on a plaintiff’s statement “disclaiming” her disability — that is, testifying that she does not consider herself “disabled” — to hold that she does not meet the statutory definition of disability, and therefore loses her claim. This Article addresses this error. Specifically, after cataloguing this …

The Character Of Jury Exclusion, Anna Offit

Faculty Publications

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury …

Getting Back To “Normal”: Jury Trials In The Post-Covid Era, Paula Hannaford-Agor

Faculty Publications

When COVID-19 first disrupted jury trials in March 2020, most commentators anticipated that state and federal courts would return to business as usual shortly after an effective vaccine became widely available—an expectation that proved to be wildly optimistic as two years later the Omicron variant produced the highest rates of infection yet. It is still not clear when state and federal courts will resume “normal operations,” but when they do, trial attorneys may encounter changes in jury operations and jury trials that were introduced over the past two years. Smaller jury panels, more diverse jury pools, constraints on attorneys’ use …

Eliminating Shadows And Ghosts: Findings From A Study Of Inclusiveness, Representativeness, And Record Accuracy In Master Jury Lists And Juror Source Lists In Three States, Paula Hannaford-Agor, Miriam Hamilton, Erika Bailey

Faculty Publications

In 2021, the National Center for State Courts (NCSC) obtained grant funding from the State Justice Institute to assess the inclusiveness, representativeness, and accuracy of the juror source lists for Missouri, New Jersey, and Tennessee and the resulting master jury lists for Missouri and Tennessee. Each jurisdiction volunteered to be part of the project. For its analyses of inclusiveness, the NCSC compared the total number of records on the master jury list with the total number of adult residents in each county reported by the U.S. Census Bureau on the 2020 Census. To assess the accuracy of address records generally …

Rule 4(K), Nationwide Personal Jurisdiction, And The Civil Rules Advisory Committee: Lessons From Attempted Reform, A. Benjamin Spencer

Faculty Publications

On multiple occasions, I have advocated for a revision to Rule 4(k) of the Federal Rules of Civil Procedure that would disconnect personal jurisdiction in federal courts from the jurisdictional limits of their respective host states—to no avail. In this Essay, I will review—one final time—my argument for nationwide personal jurisdiction in the federal courts, recount my (failed) attempt to persuade the Advisory Committee on Civil Rules to embrace my view, and reflect on what lessons may be drawn from the experience regarding the civil rulemaking process. My aim is to prompt discussion around potential rulemaking reforms and to equip …

Docket Selection And Judicial Responsiveness: The Use Of Ai In The Colombian Constitutional Court, Pablo Rueda Saiz

William & Mary Bill of Rights Journal

This Article addresses some of the limitations of AI as a tool to preselect a long or shortlist of cases for a court at the apex of the judicial system to review. It focuses on the Colombian Constitutional Court, as an example of a court at the apex of the judicial system that has been historically responsive to claims for fundamental rights. Docket selection is an example of a classification problem using supervised learning, in which a machine groups data according to preestablished characteristics.

This Article draws from two different bodies of literature to analyze the consequences of using AI …

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

"Very Complex Questions": Zoos, Animals, And The Law, Dana Mirsky

William & Mary Environmental Law and Policy Review

In Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just …

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff

William & Mary Bill of Rights Journal

The recent proliferation of data breaches is one such event requiring a rethreading of standing doctrine. The Courts of Appeal are currently split on whether to allow or deny standing for data breach plaintiffs—those persons seeking recourse from the entities that fell victim to the breach and therein lost plaintiffs’ data to an unknown third party. Standing requires plaintiffs to show some injury, and how courts approach the concept of injury in these data breach cases determines whether plaintiffs will survive the standing analysis. Despite the disparate treatment of litigants across the circuits, the Supreme Court has repeatedly punted when …

Fraud Against Financial Institutions: Judging Materiality Post-Escobar, Matthew A. Edwards

William & Mary Business Law Review

In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court held that proof of materiality is required for convictions under the federal mail, wire and bank fraud statutes. During the past 20 years, the federal courts have endeavored to apply the complex common law concept of materiality to the federal criminal law context. The Supreme Court’s recent decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a civil case involving the False Claims Act, provided the federal appellate courts with an ideal opportunity to reconsider materiality standards in federal fraud …

Analysis Of Administrative Agency Adjudicatory Hearing Use Of Remote Appearances And Virtual Hearings, Fredric I. Lederer, Center For Legal & Court Technology

Faculty Publications

With the advent of the COVID-19 pandemic, federal and state courts and federal adjudicatory agencies suspended most trials and hearings. Faced with the requirement to fulfill their basic mission, many resumed partial operations using computer-based video conferencing,especially for preliminary legal and procedural matters. As time passed, the use of that videoconferencing extended to bench trials in courts and to adjudicatory hearings and proceedings such as settlement meetings, mediations, arbitrations, and status conferences in federal agencies. As of this writing, there have also been a small number of remote or virtual jury trials in state and federal courts.

The Administrative Conference …

Revolving Doors Of Hospitalization And Incarceration: How Perceptions Of Procedural Justice Affect Treatment Outcomes, Maria Slater

William & Mary Journal of Race, Gender, and Social Justice

This Article compares the levels of procedural justice afforded to persons with severe mental illness in the civil and criminal systems, either via involuntary commitment in state psychiatric hospitals in the civil system or via mental health court as an alternative to incarceration in the criminal system. Using Virginia’s mental health courts and civil commitment systems as case studies, this Article compares the procedures by which a person can be involuntary committed in the civil system with those afforded to persons who are funneled into mental health treatment courts in the criminal system, analyzing how levels of procedural justice—both actual …

An Evaluation Framework For Allied Legal Professional Programs: Assessing Improvements In Access To Justice, Andrea L. Miller, Paula Hannaford-Agor, Kathryn Genthon

Faculty Publications

The American legal system has a civil access-to-justice gap, wherein many people with civil legal issues are unable to obtain legal assistance. People with civil legal issues who cannot afford an attorney frequently must proceed through the legal system on their own. As the number of Self-Represented Litigants (SRLs) grows, several jurisdictions have investigated the creation of an additional tier of legal service providers, who can give limited legal assistance at a lower price than attorneys. For the purposes of this report, we will refer to these service providers as Allied Legal Professionals (ALPs). ALP programs can involve a wide …

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …