Courts Commons^™

Three Ideas For Discretionary Appeals, Bryan Lammon

Akron Law Review

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a …

The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine

Akron Law Review

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible …

Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert

Akron Law Review

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.

When a party files a motion to disqualify a judge …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Akron Law Review

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Virtual Pretrial Jurisdiction For Virtual Contacts, Max D. Lovrin

Brooklyn Law Review

Personal jurisdiction is a threshold requirement for any civil court’s constitutional exercise of adjudicative authority over a defendant, and one of civil procedure’s most fundamental concepts. The Supreme Court is acutely aware of difficulties facing personal jurisdiction doctrine in an evolving world and the need for jurisprudential solutions to those problems. But recent inconsistent trends in Supreme Court personal jurisdiction jurisprudence have served to further complicate the doctrine. Such overcomplication often leads to unpredictability, which both increases expenses for litigants and creates additional work for the already overburdened federal civil docket. This problem is exacerbated when litigation arises out of …

Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam

Brooklyn Law Review

The landscape of M&A litigation in Delaware has undergone a substantial transformation within the last decade. Almost every transaction involving the acquisition of a publicly traded company has attracted stockholder litigation. This note considers Delaware’s attempt to strike the right balance between deterring frivolous litigation and ensuring adequate stockholder protections. In particular, this note considers the social utility of Delaware’s appraisal remedy and the practice of “appraisal arbitrage.” This note puts forth reasons as to why a healthy market of appraisal arbitrage benefits all stockholders: a meaningful threat of appraisal litigation encourages better sales practices in the market for corporate …

The Meaning Of Federalism In A System Of Interstate Commerce: Free Trade Among The Several States, Donald J. Kochan

Notre Dame Law Review Reflection

As states become dissatisfied with either the direction of federal policy or the

gridlock that seems like a barrier frustrating action, their disdain or impatience is

increasingly manifest in state legislative or regulatory efforts to reach big issues

normally reserved to federal resolution. Increasingly, such efforts to stake a position

on issues of national or international importance are testing the limits of state

autonomy within a system of federalism that includes robust protection for the free

flow of commerce among the several states.

This Essay provides the primary historical backdrop against which these

measures should be judged with a particular …

Reconsidering Wrongful Birth, Luke Isaac Haqq

Notre Dame Law Review Reflection

The tort action for “wrongful birth” has a history dating back at least to the

1960s, when it emerged along with the claims for “wrongful life” and “wrongful

conception.” Since their incipience, this trio of lawsuits has generated an expansive

commentary, reaching into thousands of articles in the legal literature alone. With a

divide among federal circuits on wrongful birth only beginning to gain visibility with

Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful

birth claim could potentially provide a site for the Supreme Court to revisit national

abortion policy.

The …

Exactly What They Asked For: Linking Harm And Intent In Wire Fraud Prosecutions, Christina M. Frohock, Marcos Daniel Jiménez

University of Miami Law Review

Recent opinions have obscured the U.S. Court of Appeals for the Eleventh Circuit’s guidance on federal criminal fraud prosecutions. In 2016, the court decided United States v. Takhalov and found no crime of wire fraud where the alleged victims received the benefit of their bargain. Just three years later, the concurring opinion in United States v. Feldman criticized that prior reasoning as puzzling, inviting problematic interpretations that become untethered from the common law of fraud. This Article tracks the development of the court’s view and argues for an interpretation of Takhalov that links harm to the specific intent necessary for …

The Difference Of One Vote Or One Day: Reviewing The Demographics Of Florida’S Death Row After Hurst V. Florida, Melanie Kalmanson

University of Miami Law Review

As the federal appeals court with jurisdiction over Florida and Alabama—two leaders in capital punishment in the United States—the Eleventh Circuit reviews several claims each year related to capital punishment. Florida is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing scheme is important for understanding capital punishment nationwide.

This Article analyzes the empirical demographics of Florida’s death row population and reviews how defendants are sentenced to death and ultimately executed in Florida. The analysis reveals that although age is not a factor upon which murder/manslaughter defendants are discriminated against in the …

A Cure For Every Ill? Remedies For “Pathological” Arbitration Clauses, Harout J. Samra, Ramya Ramachanderan

University of Miami Law Review

Defective arbitration and dispute resolution clauses—widely called “pathological clauses”—may undermine parties’ intent to seek recourse to arbitration rather than the courts. Questions concerning the existence and validity of arbitration clauses are subject to state contract law despite the wide sweep of the Federal Arbitration Act. This Article examines selected common “pathologies” and reviews recent court decisions, including from the Eleventh Circuit Court of Appeals and its constituent federal district courts, concerning the enforcement of such clauses.

Recklessness, Intent, And War Crimes: Refining The Legal Standard And Clarifying The Role Of International Criminal Tribunals As A Source Of Customary International Law, Brian L. Cox

Cornell Law Faculty Publications

This Article explores the substantive and procedural aspects of the assertion that recklessness is included on the spectrum of mens rea for war crimes as a matter of customary international law. The substantive aspect of the inquiry, in Part I, engages in a critical assessment of the assertion that the jurisprudence of international criminal tribunals indicates that recklessness is sufficient to support a war crimes prosecution in general. The procedural aspect, in Part II, contests the prevailing “principal-agent” construct of describing the relationship between states and international criminal tribunals and the resulting role of tribunals in establishing customary international law. …

The Great Writ And Federal Courts: Judge Wood's Solution In Search Of A Problem, William H. Pryor Jr.

Notre Dame Law Review

Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. But that thesis cannot be squared with the proposal Judge Friendly championed in …

Only Where Justified: Toward Limits And Explanatory Requirements For Nationwide Injunctions, Milan D. Smith Jr.

Notre Dame Law Review

In Part I of this Article, I discuss the existing law and current debates surrounding nationwide injunctions. I consider the origins of both the apparent recent surge in the issuance of nationwide injunctions and the apparent recent surge in skepticism concerning nationwide injunctions. In Part II, I analyze the potential justification for issuance of a nationwide injunction that I find most compelling, and on which basis I argue a court is well within the bounds of Article III notwithstanding the indirect benefits of such injunction to nonparties. In Part III, I consider three other sometimesasserted justifications that I argue courts …

A Workable Substantive Due Process, Timothy M. Tymkovich, Joshua Dos Santos, Joshua J. Craddock

Notre Dame Law Review

In this Article, we have three objectives. First, we’d like to add our own conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways— to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. …

A Survivor's Perspective: Federal Judicial Selection From George Bush To Donald Trump, Leslie H. Southwick

Notre Dame Law Review

Over recent decades, federal judicial selection controversies are worsening in their frequency and intensity. They distort all three branches of government. My particular concern is with federal judicial selection for judgeships below the Olympian heights of those on the United States Supreme Court, namely, the judges on the twelve regional circuit courts of appeals and the ninety-four district courts.

The depth of partisan acrimony over judicial confirmations has placed us in the infernal regions, and we seem to be continuing our descent. Analyzing how we got there is invariably affected by the biases, or more gently, by the perspectives of …

Certification Comes Of Age: Reflections On The Past, Present, And Future Of Cooperative Judicial Federalism, Kenneth F. Ripple, Kari Anne Gallagher

Notre Dame Law Review

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Brief Of The Boston University Center For Antiracist Research As Amicus Curiae In Support Of Petitioner In Larry Thompson V. Police Officer Pagiel Clark, Shield #28472; Police Officer Paul Montefusco, Shield #10580; Police Officer Phillip Romano, Shield #6295; Police Officer Gerard Bouwmans, Shield #2102, Respondents, Angela Onwuachi-Willig, Jasmine Gonzales Rose, Neda Khoshkhoo, Caitlin Glass

Faculty Scholarship

INTEREST OF AMICUS CURIAE

The Boston University Center for Antiracist Research (the “Center”) is a nonpartisan, nonprofit university-based research institution that convenes researchers, scholars, and policy experts across disciplines to find novel and practical ways to understand, explain, and solve seemingly intractable problems of racial injustice and inequity. The Center’s interest in this case arises from its expertise in researching and understanding the harms of policies, practices, and actions that produce and sustain racial inequities, and in advancing antiracist alternatives that promote racial equity.

The Second Circuit’s interpretation of the so-called “favorable termination rule,” which imposes an “indications-of-innocence” standard, is …