Courts Commons^™

Filling The Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

"President Donald Trump’s major success has been confirming judges for the thirteen federal appellate courts. The President shattered records by appointing a dozen circuit jurists in his administration’s first year, eighteen judges over the course of 2018, and twenty additional judges throughout his third year. Indeed, by June 2019, the appeals courts experienced four vacancies in 179 judgeships and today, only one position remains empty. This achievement is critical, as these tribunals are the courts of last resort for nearly every appeal, and appellate court opinions articulate greater policy than district court rulings and cover multiple states.

However, that accomplishment …

With Gratitute From Our Daughters: Reflecting On Justice Ginsburg And United States V. Virginia, Meredith Johnson Harbach

Law Faculty Publications

“What enabled me to take part in the effort to free our daughters and sons to achieve whatever their talents equipped them to accomplish, with no artificial barriers blocking their way?”

—Ruth Bader Ginsburg

On September 18, 2020, we mourned the loss of Justice Ruth Bader Ginsburg, whom many considered not just a cultural icon, but a national treasure. Among many other things, Justice Ginsburg became a later-in-life feminist “rock star,” celebrated for her rousing and impassioned dissents, her fearless defense of equality and autonomy rights, her championing of civil rights, and her persistent determination in the face of injustice. …

Reports Of Cases In The Court Of Exchequer In The Middle Ages (1295-1496), William Hamilton Bryson

Law Faculty Publications

The basic and original jurisdiction of the Court of Exchequer, which was a part of the royal Treasury, was to decide legal disputes over the revenues of the king and the Kingdom of England, Wales, and the Town of Berwick. The substance of this jurisdiction was the financial rights of the crown according to the common law of England and the equity thereof. The Court of Exchequer also decided legal disputes between private parties where one of the parties was an officer of the court, an accountant to the crown who was under the active jurisdiction of the court in …

Senator Chuck Grassley And Judicial Confirmations, Carl Tobias

Law Faculty Publications

Iowa Republican Senator Chuck Grassley finished his second term as Chair of the Senate Judiciary Committee with the early January 2019 adjournment of the 115th Congress. He was the first nonlawyer to lead the august committee over almost 200 years. A core panel duty is moving judicial nominees through the confirmation process, which helps senators discharge their constitutional advice and consent responsibility. Because the Chair plays an integral role—Grassley fulfilled this obligation in a critical, albeit controversial, manner—and because his service as Chair has ended, it is crucial to evaluate how the lawmaker discharged that important responsibility.

This Essay initially …

President Donald Trump's War On Federal Judicial Diversity, Carl Tobias

Law Faculty Publications

In Donald Trump's 2016 presidential campaign, the candidate promised to nominate and confirm federal judges who would possess ideologically conservative perspectives. Across President Trump's first twenty-seven months, the chief executive implemented numerous actions to effectuate his campaign pledge. Indeed, federal judicial selection may be the area in which President Trump has achieved the most substantial success throughout his first twenty-seven months in office, as many of Trump's supporters within and outside the government recognize. Nevertheless, the chief executive's achievements, principally when nominating and confirming stalwart conservatives to the appellate court bench, have imposed numerous critical detrimental effects. Most important for …

Filling The California Ninth Circuit Vacancies, Carl Tobias

Law Faculty Publications

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Officelabeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge AlexKozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency …

Filling The New York Federal District Court Vacancies, Carl Tobias

Law Faculty Publications

President Donald Trump contends that federal appellate court appointments constitute his foremost success. The president and the United States Senate Grand Old Party (GOP) majority have compiled records by approving forty-eight conservative, young, accomplished, overwhelmingly Caucasian, and predominantly male, appeals court jurists. However, their appointments have exacted a toll, particularly on the ninety-four district courts around the country that must address eighty-seven open judicial positions in 677 posts.

One riveting example is New York’s multiple tribunals, which confront twelve vacancies among fifty-two court slots. The Administrative Office of the United States Courts considers nine of these openings “judicial emergencies,” because …

Appointing Lesbian, Gay, Bisexual, Transgender And Queer Judges In The Trump Administration, Carl W. Tobias

Law Faculty Publications

President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because …

Severability, Separation Of Powers, And Agency Design, Kevin C. Walsh

Law Faculty Publications

Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman …

President Donald Trump And Federal Bench Diversity, Carl W. Tobias

Law Faculty Publications

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of …

Curing The Federal Court Vacancy Crisis, Carl Tobias

Law Faculty Publications

The federal judiciary has experienced a vacancy crisis, which has intensified over President Donald Trump's tenure when judicial openings significantly increased from the 105 vacancies at his inauguration. Despite these concerns, analysts hail court selection as Trump's paramount success. This Article canvasses the rise and expansion of the crisis and scrutinizes the practices which Trump and the I 15th Senate instituted, as Republican concentration on quickly appointing many conservative appeals court judges resulted in departures from longstanding precedents and undermined the presidential discharge of constitutional responsibilities to nominate and confirm impressive jurists as well as senatorial duties to advise and …

Status Courts, Erin R. Collins

Law Faculty Publications

This Article identifies and analyzes a new type of specialized "problemsolving" court: status courts. Status courts are criminal or quasicriminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls. They differ from other problemsolving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic "problem" to be "solved." In fact, status courts aim to honor the offender's experience and strengthen the offender's association with the characteristic used to sort him or her into court.

This Article positions …

Confirming Judge Restrepo To The Third Circuit, Carl W. Tobias

Law Faculty Publications

From the moment that the Grand Old Party (GOP) won the Senate in November 2014, Republicans have directly and incessantly vowed to establish “regular order” in the upper chamber again. Lawmakers employed this phrase to depict the purported restoration of strictures that prevailed until Democrats subverted them. In January 2015, when the 114th Congress began, Senator Mitch McConnell (R-Ky.), the Majority Leader, proclaimed, “[w]e need to return to regular order,” while the legislator has dutifully recited that mantra ever since. Senator Charles Grassley (R-Iowa), the head of the Senate Judiciary Committee, espoused analogous concepts. Illustrative was his January 2015 pledge …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

Filling The Texas Federal Court Vacancies, Carl W. Tobias

Law Faculty Publications

Texas confronts many federal appellate and district court openings, but the situation has reached crisis proportions. The state addresses two protracted U.S. Court of Appeals for the Fifth Circuit vacancies, which have lacked nominees for multiple years, and eleven open trial court seats, all but one classified as "judicial emergencies." This conundrum persists, although the Senate confirmed three jurists for Texas district vacancies in both 2014 and 2015 and President Barack Obama submitted well qualified, mainstream nominees on five empty posts in March 2016. Texas Republican Senators John Cornyn and Ted Cruz also failed to expeditiously provide those designees' "blue …

Recalibrating Judicial Renominations In The Trump Administration, Carl W. Tobias

Law Faculty Publications

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention-specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical duties …

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned, Dale Margolin Cecka

Law Faculty Publications

"The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error."

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia's trial …

Filling The Seventh Circuit Vacancies, Carl W. Tobias

Law Faculty Publications

In January 2016, President Barack Obama nominated Donald Schott and Myra Selby for empty judicial positions on the United States Court of Appeals for the Seventh Circuit. Schott is a very talented practitioner, who has efficaciously served as a well-respected partner of a major law firm for greater than thirty years. For instance, Schott has professionally worked on numerous complicated federal suits and a plethora of complex actions, many of which efforts concluded with alternative dispute resolution. Selby is concomitantly an exceptional lawyer, who has compiled a distinguished record in the public and private sectors. For example, the compelling prospect …

Nominate Judge Koh To The Ninth Circuit Again, Carl W. Tobias

Law Faculty Publications

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of Columbia …

The Court After Scalia, Kevin C. Walsh

Law Faculty Publications

In this editorial, Professor Walsh surveys the 2015-2016 U.S. Supreme Court term, with particular attention to the effects the late Justice Antonin Scalia's absence had on the Court's decisions.

Some Thoughts Raised By Magna Carta: The Popular Re-Election Of Judges, William Hamilton Bryson

Law Faculty Publications

This essay, first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C., takes as its inspiration the spirit of the rule of law, as laid down in the Magna Carta. Specifically, the author argues that the popular election and reelection of judges undermines the rule of law, and democracy in general, by exposing judges to the manipulations of financial corruption, political intimidation, and the often irrational shifts in popular opinion. To correct this problem, the author calls for amendment of the thirty-nine state constitutions …

Third Circuit Court Reports (1789-1879), Joel Fishman

Law Faculty Publications

The history of court reporting of the federal lower judiciary dates from the early days of the Republic. Mr. Fishman helps to document that history by reviewing the publication of the reports for the Third Circuit ( circuit and district courts) covering the nominative reports from the late-eighteenth to the late-nineteenth century, before their republication in Federal Cases by West Publishing Company. A bibliography is appended.

Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

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 …

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

A Demographic History Of Federal Judicial Appointments By Gender And Race: 1789-2016, Jonathan K. Stubbs

Law Faculty Publications

This article briefly surveys the constitutional and statutory foundation for the creation of the federal judiciary. It also furnishes data, by sex and race, of the appointment of federal judges to courts of general jurisdiction during each presidential administration from September 24, 1789, through April 11, 2016. Thus, Part I describes the pace of diversification of the federal judiciary. While data regarding other attributes of judges (such as their socioeconomic status) exist, extensive analysis of such characteristics falls outside the parameters of this preliminary analysis. Nonetheless, the Article notes in passing that, since 1989, during each presidential administration, the majority …

The Republican Senate And Regular Order, Carl W. Tobias

Law Faculty Publications

Now that the 114th Congress has reached the first session’s conclusion, the purported application of regular order to a major Senate constitutional duty—rendering advice and consent on presidential nominees—merits analysis. This evaluation illuminates serious deficiencies, which plagued 2015 confirmations. Especially important was the GOP’s failure to expeditiously suggest aspirants for White House consideration, and specifically failing to fill “judicial emergencies,” provide hearings and ballots swiftly, conduct floor debates when required rapidly, and confirm more than 11 judges all year. This obstruction has numerous deleterious consequences; the most significant, however, is not fulfilling the constitutional responsibility to proffer advice and consent …

Reports Of Cases In The Court Of Chancery In The Middle Ages, William Hamilton Bryson

Law Faculty Publications

If the history of the law is to be properly written, it must be based upon the primary legal sources. One of the primary source materials of the law is the reports of cases. These are particularly important because here is the best evidence of the judges’ legal reasoning. The court records kept by the clerks of the courts do not give this information as, indeed, it is not their purpose to do any more than record the results of a particular lawsuit for future use. They primarily serve the purpose of res judicata; their value as judicial precedent …

Reports Of Cases In The Court Of Exchequer From 1604 To 1648, William Hamilton Bryson

Law Faculty Publications

Before the year 2000, there were in print only two modest collections of reports of cases in the Court of Exchequer dating before the accession of King George I in 1714. These are the reports of Sir Richard Lane (d. 1650) and those of Thomas Hardres (d. 1681). Combined, they cover only 28 years, and the number of cases is quite minuscule compared to the other high courts of justice at Westminster. This extreme paucity of printed materials has given a false impression of unimportance of the Court of Exchequer. While it is certainly true that this court did not …

Sir Robert Raymond's Common Law Reports (1694-1696), William Hamilton Bryson

Law Faculty Publications

Robert Raymond was born on 20 December 1673 in London. He was the only son of Sir Thomas Raymond (1627-1683), a judge and law reporter. He was formally admitted to Gray's Inn, his father's inn, at the age of nine in 1682. He was a student at Eton College and Christ's College, Cambridge. Raymond was called to the bar of Gray's Inn in November 1697, and he joined ad eundem Lincoln's Inn in 1710. He was the Solicitor General from 1710 until 1714 and Attorney General from 1720 to 1724. He was a member of Parliament from 1710 to 1724. …

Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias

Law Faculty Publications

In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …