Courts Commons^™

Against "The Huddleston Test", Dora Klein

Faculty Articles

Many courts—mostly federal, but also some state courts—are misapplying the United States Supreme Court's decision in the 1988 case United States v. Huddleston. These courts have used a single paragraph of dicta from the Huddleston opinion to craft multipart checklist-type "tests" that displace the single requirement of Rule 404(b) of the Federal Rules of Evidence (or corresponding state rules). This displacement risks the admission of other acts evidence without determining whether the evidence is relevant for a non-character purpose by means of inferences that do not involve character. These Huddleston tests thus undermine Rule 404(b)'s prohibition that other acts evidence …

A Year In Review: The Federal Circuit's 2023 Government Contract Law Decisions, Sophie Marsh, Taylor Mcdaniels, Allison Moors

American University Law Review

This Article continues previous in-depth reviews of government contract law cases decided by the Federal Circuit and published by the American University Law Review. In 2023, the Federal Circuit clarified the appropriate standard of review, emphasizing that, more likely than not, the Boards of Contract Appeals should apply a de novo standard of review. Additionally, the court set significant judicial precedent by holding that the issues of party standing, timely raising a solicitation defect, and asserting a sum certain are nonjurisdictional. Finally, the court also issued decisions concerning implied-in-fact contracts, excusable delays, and the importance of reporting unallowable costs.

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

Scholarly Publications

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members' causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Michigan Senators' Crucial Role In Keeping Federal Courts Full, Carl Tobias

Law Faculty Publications

One critical responsibility that the American Constitution assigns senators is the provision of comprehensive advice and consent respecting accomplished federal judicial candidates suggested by the President to serve, particularly in their home states. Democratic Senator Debbie Stabenow, who is completing her fourth term representing Michigan, has always joined with her colleague Democratic Senator Gary Peters in the administration of President Joe Biden and Vice President Kamala Harris to astutely discharge this crucial responsibility. Stabenow and Peters exercised sound judgment, intelligence, hard work, and keen appreciation for the distinct roles that the Constitution accords the President and senators in the confirmation …

Supplemental Jurisdiction And § 1367: The Good, The Bad, And The Ugly, Wendy Perdue

Law Faculty Publications

Among the outstanding accomplishments of Judge Joseph F. Weis, Jr. was his work chairing the Federal Court Study Committee. Appointed by Chief Justice Rehnquist at the direction of Congress, the committee undertook a fifteen month study of the problems in the federal court system. The final report was issued in 1990 and made a series of recommendations addressing a broad range of topics including tax jurisdiction, narcotics prosecutions, habeas cases, sentencing reform, disability adjudications, and diversity jurisdiction, which the committee recommended eliminating entirely...

Altered Stakes: Reimagining The Amount-In-Controversy Requirement, Steven Gensler, Roger Michalski

Faculty Articles

Which state-law cases should Congress allow into federal court? Congress's answer has always been "only the big ones." This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases make it into the diversity docket. We explore lotteries, auctioning access to the highest bidder, setting an amount in controversy maximum rather than the current minimum, pegging the jurisdictional amount to the minimum wage or the cost of a hamburger, employing relative measures that use multiples …

To Legitimacy And Beyond: A Reform Agenda To Restore Public Confidence In The Federal Courts, Charles G. Geyh

Articles by Maurer Faculty

The article begins by describing he ongoing cycle of anti-court sentiment directed at the federal courts. It situates that cycle in historical context, to the end of showing how independence norms have evolved to constrain more draconian efforts to curb the courts in those cycles. The article then explains why the latest cycle is unusually aggressive and why norms that have protected the judiciary’s independence for generations may be at risk if public skepticism of the courts reaches the point of undermining the judiciary’s perceived legitimacy. Next, the article sorts through the definitional clutter that complicates assessments of whether the …

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 …

A Theory Of Law For The Next Founding Generation, David N. Mcneill, Emily Tucker

CPT Papers & Reports

At the present moment, the greatest threat to our constitutional democracy, and perhaps to our survival as a nation, is the autocratic aspiration of a President who claims to have been saved by God to institute a new era of American imperialism and interplanetary manifest destiny. It might seem in this context, with a President issuing executive orders that aggressively invite constitutional challenge, and a Vice-President who has advocated that the President should ignore Supreme Court rulings he deems illegitimate, that arguments about constitutional legal theory could only be of theoretical interest. That would be true if our constitution were …

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 …

A Uniform Standard For Certifying Questions To State Courts, Bailey D. Barnes

Faculty Publications

Since the mid-twentieth century, federal courts have certified questions of state law to state supreme courts. Rather than speculate on how a state's high court would rule on a given issue, federal courts allow the state court to determine the question itself. In so doing, the federal judiciary promotes comity and consistency while discouraging forum shopping. Yet, federal courts do so at the cost of judicial economy and speedy adjudication of litigants' pending claims.

The United States Court of Appeals is divided into thirteen circuits, of which eleven exercise jurisdiction encompassing states in the Union. Each circuit, as explained in …

Some Realism About Choice-Of-Law Statutes And The Common Law: The Oregon Example, John T. Parry

Lewis & Clark Law Review

Choice-of-law doctrine presents perpetual change. Common law doctrine is the primary driver of these changes, but change and reform need not come from common law alone. As Robert Leflar once observed, “it should not make much difference whether a governing choice-of-law rule . . . is found in the common law or in a statute. The same rule might be formulated in either way.” This Article assess the utility of choice-of-law statutes, on their own merits and as a substitute for common law reform. The Article begins by surveying the choice-of-law landscape, with its twin problems of multiplicity of methods …

White-Collar Courts, Merritt E. Mcalister

UF Law Faculty Publications

Article III courts are white-collar courts. They are, scholars have said, “special.” They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite—jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was …

The Federal Circuit: A Microcosm Of Changes In The Legal Landscape, Jimmie V. Reyna

American University Law Review

On April 2, 1982, Congress established the United States Court of Appeals for the Federal Circuit through the Federal Courts Improvement Act of 1982, which merged the United States Court of Customs and Patent Appeals with the appellate division of the United States Court of Claims. The Federal Circuit has just surpassed forty years of appellate jurisprudence.

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 …

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

The Swift Completion Of Their Appointed Rounds, Roger Michalski

Other Faculty Publications

No abstract provided.

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 …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Scholarship

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

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

Popular Media

No abstract provided.

Rebuilding The Federal Circuit Courts, Merritt E. Mcalister

Northwestern University Law Review

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 …

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 …

The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

St. Mary's Law Journal

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Year In Review: The Federal Circuit's 2021 Government Contract Law Decisions, Morgan W. Huston, Nicholas Feldstern, Camille Chambers

American University Law Review

It has been almost forty years since Congress created the United States Court of Appeals for the Federal Circuit with the goal of ensuring uniform and definitive judicial interpretations of the law applicable to Federal Government contracting. Because, like that of the Court of Claims before it, the precedent of the Federal Circuit guides how procurement laws are interpreted, it is important for practitioners and those whose livelihoods depend on government contracting to pay attention to the decisions that the Federal Circuit issues.