This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought...
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...
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...
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...
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
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...
The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon...
The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement. Today’s arguments in support of felony...
This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after...
This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups...
In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions...
This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic...
Reasoned immigration policy has the power to positively influence the economy by supporting innovation, creating jobs, and advancing research and development; one such device to accomplish such economic goals is utilizing the National Interest Waiver (NIW). Under section 203(b)(2)(B) of the Immigration and Nationality Act (INA), congress provided a path to a green card for non...
Few courts have addressed whether ISP’s use of hash-based evaluation violates an individual’s Fourth Amendment rights. In 2018, the Fifth Circuit was presented with this issue in United States v. Reddick. The defendant is Reddick uploaded files to the cloud-sharing server Microsoft SkyDrive. Thereafter PhotoDNA, a computer software program that uses hashing, automatically...
When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect...
This Article addresses the topic of global legal profession networks. The thesis of this article is that lawyers’ connection to global legal profession networks - meaning the relationships that lawyers and their employers form with individuals and institutions in other countries - is valuable for both the lawyers themselves, and for their clients. Although scholars have written...
Various authors have criticized the current bar exam format for not testing law practice skills. This is in spite of the ground-breaking MacCrate Report, the seminal publication of the practice-ready movement, which nearly 30 years ago listed ten fundamental practice skills. One of these ten Fundamental Lawyering Skills is legal research, which is still not tested on bar exams...
This Article proposes a conception of the “personal physical injury” exclusion that does not require observable bodily harm. The §104 exclusion has historically been interpreted by reference to tort principles. And tort law has long recognized the legitimacy of emotional distress arising from invasions of physical interests that do not cause bodily harm, even when it would not...
The challenges with civil discovery are often overwhelming. At times, counsel may feel powerless to avoid discovery quagmires and the resulting costs and delays. Nevertheless, counsel can guide a matter through these complexities if they learn how to better manage the discovery process. In Navigating the Discovery Chess Match through Effective Case Management, I expound on three...
The Federal Rules of Evidence, and rules in the States, allow for impeachment of the testimony of a witness by proof of the witness's criminal convictions. If the witness is the criminal defendant, however, there are restrictions on this kind of impeachment. The theory is that the jury is supposed to use the evidence solely for impeachment and not to support an inference that the...
To an outside observer, immigration courts may appear identical to criminal courts. However, there is one critical distinction. In criminal court, defendants have a well-established right to court-appointed counsel if they cannot afford a lawyer. But there is no such right for aliens with removal orders. If they cannot afford an attorney, or if they do not have the good fortune...
The savvy nature of academic cheating has outpaced educators racing to foil students’ high-tech high-jinx. Indeed, a culture of cheating in higher education has become pervasive, and even normalized. While problematic in all educational contexts, the implications of this erosion of academic integrity have particularly profound consequences in law school. There is no question that...
What can we learn from including class members’ voices in the process of approving settled class actions? How does the opportunity provided to class members to participate in a public hearing relate to the inherent tension between individualism and the goals of aggregate litigation? Employing a unique methodology for analyzing court transcripts and using original data, this paper...
There is no federal constitutional right to bail. This means the question of who is bailable in state court is left entirely to state law. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). This traditional right to bail is categorical...
Nonprofit organizations are prevalent in today’s economy, and many are governed by individuals who have been chosen on the basis of their advocacy of or contributions to various nonprofit causes rather than on the basis of business experience or acumen. Yet effective nonprofit governance, while presenting concerns unique to nonprofits, also presents many of the same concerns as...