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Manufactured finality is an umbrella term for the various ways that federal litigants try to create a final, appealable decision. And it has an uncertain future after the Supreme Court's decision in Microsoft Corp. 73 . Baker. Yet existing studies of manufactured finality have failed to appredate its nuances. Several different varieties of manufactured finality exist. Each applies in different contexts, implicates different interests, and has different prospects for future use after Microsoft. In this Article, I comprehensively detail the variables that go into manufactured finality, create a typology of the various forms of manufactured finality that appear in the courts of appeals, and address Microsoft's impact on each of those forms. In the course of doing so, I raise two larger issues. The first concerns how we define finality. The predominant conception of finality looks to the substance of a district court's decision, asking if that court has actually disposed of all claims in an action. The law of appellate jurisdiction might be improved by shifting the focus to asking simply whether the district court has finished with an action. The second issue concerns the role that litigants play in determining when they can appeal. As things stand, courts have essentially complete control over those matters. Experience with manufactured finality suggests that litigants should have some say in identifying proper opportunities for interlocutory appeals. [ABSTRACT FROM AUTHOR]

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if "extraordinary and compelling reasons" warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. Following the passage of the First Step Act of 2018, most circuit courts held the Commission's policy statement describing extraordinary and compelling reasons inapplicable, and that until the Commission updated its policy statement, courts enjoyed the discretion to determine what circumstances justify compassionate release. Many have celebrated this newfound discretion and its potential to expand individuals' ability to receive compassionate release. However, judicial discretion, though valuable in many ways, inevitably leads to disagreement and disparity. Perhaps unsurprisingly, circuit courts have disagreed on whether certain circumstances could, as a matter of law, justify a grant of compassionate release, causing geographic disparity in individuals' ability to receive compassion. In April 2023, the Commission updated its policy statement and included a catchall provision codifying judicial discretion and, unless the Commission acts, the disparity that discretion invites. This Comment argues that for judicial discretion to improve compassionate release, the Commission must take an active role in overseeing judicial discretion so that compassionate release can enjoy the benefits of that discretion without accepting the disparity discretion often creates. Specifically, it argues the Commission, through its statutory authority to describe what should be considered an extraordinary and compelling reason, can resolve current and future circuit splits over what constitutes an extraordinary and compelling reason by promulgating amended policy statements expressly including, or excluding, the disputed circumstance in its description of extraordinary and compelling reasons. In doing so, the Commission would effectively erase circuit courts' contrary interpretations of extraordinary and compelling reasons and thereby end the regional "droughts of compassion" the current approach to judicial discretion allows. [ABSTRACT FROM AUTHOR]

Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus’s origin as one of the common law’s “extraordinary” writs. Federal courts of appeals typically issue mandamus once or twice per year at most. In patent cases, however, mandamus is a remarkably ordinary form of appellate relief. As the empirical study presented by this article shows, in the past thirteen years, the U.S. Court of Appeals for the Federal Circuit, which hears all patent appeals nationwide, has issued mandamus sixty-one times, granting 22% of the mandamus petitions it has received in cases pending in the federal district courts (61 of 283). Crucially, the Federal Circuit’s high grant rate is driven almost entirely by mandamus petitions in cases from two judicial districts, the Eastern and Western Districts of Texas, on a single legal issue, transfer of venue. On transfer-related petitions arising from those courts, the Federal Circuit has granted the extraordinary writ of mandamus an astonishing 37.3% of the time (in 38 of 102 cases) since 2008. And this after having never granted a transfer-related mandamus petition before that year. The Federal Circuit, with its semi-specialized jurisdiction over patent cases and a few other areas, is often criticized for taking an “exceptionalist” approach to procedural issues in patent litigation. It is tempting to lob that critique at the Federal Circuit’s aberrant mandamus practice, too. We argue, however, that the court’s high grant rate actually stems from systematic flaws in the patent litigation system that the Federal Circuit has little power to fix—namely, rules of venue and judicial case assignment that encourage plaintiffs to shop not just for favorable district courts, but for individual district judges. Addressing the underlying problem of judge shopping—as the Western District of Texas has finally begun to do—would likely help bring the Federal Circuit’s mandamus practice into the mainstream. [ABSTRACT FROM AUTHOR]

Following the line of cases asking questions such as what is a chicken, and is a burrito a sandwich, comes the next deep legal issue, what is beer? How do we determine this seemingly simple question? Do we simply know it when we see (or taste) it? Does it require a mix of specific ingredients or certain processes? Or, if we should rely on definitions, do we look to the dictionary, history, or statutes? In a dispute in the United States District Court for the Southern District of New York, the court is asked to resolve this question. Courts have long used tools of contractual interpretation to determine the meaning of terms to which the parties involved have agreed. Sometimes though, it is not always so easy to determine what the parties meant, even when they provide definitions in the contract. This is further confused when the terms in controversy have historical, scientific, social, industrial, and legal definitions. Through the history and science of beer, principles of judicial contract interpretation, and judicial contract interpretation case law we will explore how the courts determine these issues, and whether there are better ways to answer life's hard questions. [ABSTRACT FROM AUTHOR]

The article focuses on the Minnesota District Judges Association (MDJA) Law Clerk Committee hosting a law clerk admission ceremony to the U.S. District Court for the District of Minnesota, U.S. on May 7, 2024.

Moreover, defendants may claim that a plaintiff should not be entitled to the full measure of its lost profit even where the breach occurred before the onset of the pandemic by attempting to prove that the long-term effects of the pandemic will permanently impair future profitability. To be entitled to lost profits, the loss must have been caused by the underlying breach rather than some other cause or source of harm.[10] Lost profit damages will only be available to a plaintiff if that plaintiff can prove that the lost profits flowed consequentially from the claimed breach. The COVID-19 pandemic initially had a devastating impact on business worldwide, and franchised businesses and franchisors in the United States were not spared. For a claim that accrued during the pandemic, a plaintiff must articulate how the defendant's conduct caused a separate loss of profits distinct from the harms caused by the pandemic. [Extracted from the article]

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the expansion of jurisdiction for local judges, and increased transparency in records and court dealings. By creating such a centralized, professionalized system of municipal courts, oversight can be expanded, procedural uniformity can be promoted, and basic civil rights now left unguarded or outright denied by justice courts can be protected. Moreover, to preserve the spirit of democratically elected local judicial offices, the Vermont justice of the peace model may be adopted in New York, creating popularly elected positions responsible for handling key local functions, such as giving oaths of office, solemnizing marriages, and hearing tax appeals. By moving away from the unwieldy, outdated town and village justice court regime, New York can catch up with a growing number of similarly minded states, move forward with its efforts to reform the justice system, and ensure that fair local justice is guaranteed to all New Yorkers--not just those living downstate. [ABSTRACT FROM AUTHOR]

The Federal Circuit's jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit's jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff's claim or a party's counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all other legal issues, the Federal Circuit defers to the law of the court of appeals in which the case originated--i.e., it applies the procedural law and the non-patent substantive law of the regional circuits. This Article undertakes a thorough evaluation of the Federal Circuit's choice-of-law rule. It examines how the rule compares against the congressional objectives reflected in the court's enabling statute as well as against possible alternative rules. In addition, it considers how the court's rule causes the court to depart from the trans-substantivity principle of procedural law and a related principle of equity in a nontransparent manner, and, in doing so, engage in substantive lawmaking that may be beyond the court's authority. Finally, this Article contemplates solutions beyond a mere change in the court's choice-of-law rule. [ABSTRACT FROM AUTHOR]

The article examines the applicability of the vertical stare decisis concept of the Appellate Jurisdiction Theory in the decisions of three-judge federal district courts in the U.S.

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent litigation. Under the Colorado River abstention doctrine, only "exceptional circumstances," beyond the mere pendency of a parallel state case, will permit a federal court to relinquish jurisdiction in favor of the state action. How have the lower federal courts responded to this mandate to take jurisdiction, given the inherent waste and confusion engendered by concurrent litigation? And is there a more coherent and efficient way to manage this symptom of our dual federal-state court system? This Note seeks to answer these questions by focusing on the practical application of Colorado River "on the ground" in the lower courts, a subject largely unexplored by the otherwise voluminous scholarship on federal abstention. By surveying decades of cases involving Colorado River abstention in two federal courts of appeals and two district courts, this Note reaches a startling conclusion. Driven by a lack of guidance from the U.S. Supreme Court and a desire to rid their dockets of duplicative suits, the lower courts have taken wildly divergent approaches to Colorado River. The Second Circuit Court of Appeals, for example, has applied the doctrine rigidly, demanding that district courts retain jurisdiction in all but the most exceptional circumstances. Under pressure from this circuit precedent, judges in the Southern District of New York have frequently sought to "effectively" abstain via alternative means, simultaneously relinquishing federal jurisdiction and frustrating appellate review. When they instead attempt to proceed to judgement rather than effectively abstain, the result is typically (and unsurprisingly) a significant waste of judicial resources. On the other hand, the Seventh Circuit has taken a highly permissive view of Colorado River abstention, watering down the otherwise restrictive doctrine. Judges in the Northern District of Illinois have taken up this view with alacrity, abstaining pursuant to Colorado River in the vast majority of cases involving parallel state litigation, subject only to limited and deferential appellate review. This inconsistent doctrinal development could hardly be described as desirable--a combination of informal abstention and judicial waste in the Second Circuit compared with virtually unfettered discretion to formally abstain in the Seventh Circuit. Thus, this Note concludes with a comprehensive proposal to bring greater structure and coherency to the doctrine while avoiding both of these negative results. [ABSTRACT FROM AUTHOR]

President Donald Trump repeatedly argues that appellate court appointments constitute his major success. The President and the United States Senate Republican Party majority have established records by approving fifty very conservative, young, and capable appellate court jurists. However, their confirmations have exacted a toll, particularly from the many federal district courts which address seventy-nine unfilled positions in 677judicial posts. One constructive illustration has been the three Illinois tribunals which confront five pressing openings. The Administrative Office of the United States Courts classifies three as "emergencies," because the vacant seats have been protracted and involve substantial caseloads. Despite this circumstance, Trump failed to nominate any Illinois district court candidate before June 2018, while the U.S. Senate only appointed a nominee more than one year later. All openings lacked nominees until recently, mostly because the White House did not resend the Senate three nominees whom Trump had proposed last year until May 2019. District judges comprise the Illinois federal justice regime's "workhorses" and resolve large dockets, while the ample vacancies pressure Illinois district courts and litigants, conditions that epitomize the nation. Thus, the efforts to fill the abundant openings by the President, the Senate, and Democratic lawmakers who represent Illinois--Senator Richard Durbin, the Minority Whip, and Senator Tammy Duckworth--necessitate assessment. Part II of this Article recounts the background of judicial selection, emphasizing the contemporary problem. Part III surveys the practices which Trump and the chamber deploy, detecting that both stress the rapid appointment of conservative, young, and competent appellate court jurists but downplay district level vacancies. He also limits venerable customs which presidents have implemented. The section then evaluates confirmation procedures, finding that the Judiciary Committee deemphasizes important traditions, especially "blue slips"--which stop nominee consideration, unless both home state senators approve candidates--and hearings' careful arrangement that prior committees had rigorously applied. Part IV considers numerous selection practices' effects, determining that until November 2019 there were more open district court slots than upon Trump's inauguration. The emphasis on speedily appointing conservative appellate court judges and deviations from important precedents that had long effectively served White Houses, Senates, and federal courts are undercutting both discharge of the President's constitutional duties to nominate and confirm accomplished district court judges and fulfillment of the Senate's constitutional responsibilities to advise and consent on nominees. The massive number and prolonged nature of vacancies concomitantly undermine the judiciary's responsibility to promptly, economically, and fairly treat significant numbers offilings. However, assiduous executive branch consultation with the Illinois senators, who astutely collaborated, directly fostered the expeditious appointment of two preeminent Seventh Circuit jurists and the careful nomination, although rather lengthy confirmation, of three able, moderate district court nominees. The last section proffers suggestions for the future. Now that President Trump has renominated those strong, mainstream district nominees--who easily won confirmation--he should meaningfully consult with the Illinois senators and revitalize numbers of efficacious concepts from which presidents and senators have gleaned much benefit, to fill every Illinois vacancy. The Senate ought to re-vive venerable measures, robust hearings, rigorous committee discussions, and vigorous confirmation debates. These efforts and successfully filling the Illinois empty district positions could supply instructive guidance for judicial selection across the United States, particularly by showing how ample White House consultation of home state senators and careful collaboration by these politicians can promote the smooth nomination and appointment of highly qualified mainstream appeals court and district court jurists. [ABSTRACT FROM AUTHOR]

The Court of Appeals for the Federal Circuit ("Federal Circuit") has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO's legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they rest on subsidiary factfinding. Congress expanded the role of the PTO in adjudicating challenges to patent validity in the Leahy-Smith America Invents Act of 2011 ("AIA"), authorizing new adjudicatory proceedings before the Patent Trial and Appeal Board ("PTAB") as an alternative to federal district court litigation. The AIA provides for Federal Circuit review of PTAB decisions, without specifying standards of review. The scope of review could determine the success of these proceedings as a quicker, cheaper, and more expert alternative to district court litigation of patent challenges. The Federal Circuit applies the same standards of review to PTAB decisions in AIA proceedings that it applies to other PTO rulings, reviewing legal conclusions de novo and factual findings for substantial evidence. It also follows the same characterizations of issues as legal or factual that it has long used in the context of court/court review. In the past, by maximizing the scope of appellate review, these characterizations allowed the Federal Circuit to exercise greater quality control over generalist trial courts with limited competence to resolve patent matters. The net benefits are more dubious as applied to decisions of expert PTAB panels in AIA adjudications. Yet reversal rates at the Federal Circuit are essentially the same for PTAB decisions as for decisions of district courts in patent cases, threatening to frustrate a system designed to improve patent quality while limiting litigation costs. This Essay reconsiders the proper scope of judicial review of PTAB rulings on two issues that the Federal Circuit codes as legal conclusions with factual underpinnings: nonobviousness and claim interpretation. Drawing on a functional approach to judicial review of mixed questions of law and fact, it argues for more deferential review of PTAB rulings on nonobviousness and claim interpretation given the expertise of the administrative tribunal and the case-specificity of the rulings. The Federal Circuit would do better to confine de novo review to generalizable legal rulings that provide guidance in future matters rather than replicating the work of the PTAB from the appellate bench on routine case-specific rulings. [ABSTRACT FROM AUTHOR]

The doctrine of forum non conveniens was developed as a pragmatic response to an evolving judicial economy. This sense of pragmatism has continued to define application of the doctrine in the United States. Yet, in the international context, the Supreme Court last outlined the contours offorum non conveniens analysis in 1981 but, in the decades since, technological advancement has significantly altered the litigation playing field. For example, discovery is less burdensome now that documents are digitally transferable. And, even if relevant evidence isn't digitizable, shipping costs have decreased significantly. Echoing these facts, critics argue forum non conveniens has lost the pragmatism that once defined the doctrine. The doctrine of forum non conveniens was developed as a pragmatic response to an evolving judicial economy. This sense of pragmatism has continued to define application of the doctrine in the United States. Yet, in the international context, the Supreme Court last outlined the contours offorum non conveniens analysis in 1981 but, in the decades since, technological advancement has significantly altered the litigation playing field. For example, discovery is less burdensome now that documents are digitally transferable. And, even if relevant evidence isn't digitizable, shipping costs have decreased significantly. Echoing these facts, critics argue forum non conveniens has lost the pragmatism that once defined the doctrine. This Comment examines how United States district courts make forum non conveniens decisions in cases involving foreign plaintiffs and domestic defendants. Specifically, by examining published forum non conveniens opinions, this comment hopes to shed light on the importance of globalization when courts make a forum non conveniens ruling. [ABSTRACT FROM AUTHOR]

When a state utility wishes to cross land located within a Native American reservation, but the landowners refuse to allow it, the utility in most circumstances may exercise eminent domain over the land. Under the authority of a federal statute, 25 USC §357, states may generally condemn allotments, plots owned by individuals that lie within the sovereign boundaries of a tribal reservation. Courts have long recognized that the state authority to condemn these allotments under § 357 arises from the principle that individually owned allotments are no longer "tribal" land and, as a result, they are not protected by tribal sovereignty. Congress's failure to transition away from the allotment system has resulted in an ownership structure for certain plots of reservation land that it did not anticipate when it enacted § 357. Today, not all allotments are held entirely by individuals, and many now contain fractional, undivided interests that belong to tribes themselves. This status of joint ownership between individuals and tribes, which this Comment refers to as "partially tribal," leads to considerable complications with respect to the scope of § 357. Courts have routinely held that land owned by a sovereign Native American tribe is not subject to state condemnation and that this principle protects tribal interests in allotments. Unresolved, however, is whether a tribal interest in an allotment-which can be as small as a fraction of 1 percent-should immunize even the nontribal interest in the plot from state condemnation proceedings. In other words, should a fractional tribal interest place an entire parcel out of the state's reach? This Comment argues that it should. The courts that have attempted to allow condemnations to proceed against partially tribal allotments run into the problem that all ownership interests in an allotment are undivided; each owner holds an undivided share of the whole parcel. This means there is no way to divide the tribal interests from the nontribal ones without effecting some kind of incursion on a tribal land interest without the tribe's or Congress's consent, a result that principles of tribal sovereignty squarely reject. This Comment recognizes that Congress's intent when it passed § 357 was to eliminate tribal landholdings, but it argues that Congress has since changed course such that courts should disregard that original intent. This Comment also concedes that diminishing eminent domain power may lead to holdout problems, though it argues that protecting tribal sovereignty is the more important interest. Consistent with the principle that states may not diminish any tribal sovereignty without Congress's consent, this Comment concludes that a state utility has multiple avenues for seeking access to a partially tribal allotment, including opportunities for negotiation with the tribe and the federal government. Courts should not permit states to use § 357 unilaterally to divest a nonconsenting tribe from its interest in land. [ABSTRACT FROM AUTHOR]

In the article, the author discusses the key role played by career clerks or term clerks in judicial decision making, as well as how U.S. district court judges choose their staff by carefully analyzing the pros and cons of employing term and career clerks. Other topics include the workload of district court judges, a comparison by Chief Justice John Roberts of the responsibilities of judges and baseball umpires, as well as the role of the courts in constitutional democracy.

The article discusses the methods used in the selection and appointment of members of the magistrate judge bench in the U.S., as well as the efforts to increase the diversity of the court. Other topics include the efforts by various U.S. presidents like Barack Obama, Jimmy Carter and George W. Bush to appoint minority judges, a relative diversity comparison of district court bench and magistrate judge bench, as well as the effect of diversity on judgment quality in the courts.

This article presents information on developments in class action cases involving consumer finance in the U.S. It discusses a debate in the district courts on whether courts may exercise jurisdiction over a nationwide class action asserting state-law claims against a nonresident defendant, and a court ruling stating that the pendency of a class action suit tolls the statute of limitations applicable to the indivial claims of members of a putative class.

The article discusses the Minnesota Supreme Court's adoption of a rule governing the recognition and enforcement of tribal court orders and judgments in the state's district courts, and it mentions judicial deference and the sovereignty and jurisdiction of tribal courts. According to the article, state legislatures in America should amend their state constitutions to give full faith and credit to tribal court orders.

There has been a significant increase in the use of a controversial, dramatic remedy known as the nationwide injunction. This development is worrisome because it risks substantial harm to the judiciary by encouraging forum shopping, freezing the "percolation" of legal issues among the circuits, and undermining the comity between the federal courts. But a complete ban on nationwide injunctions is both impractical and undesirable. This Note proposes a solution to limit the abuse of nationwide injunctions without banning them outright. When fashioning remedies, courts should simplify the sheer number of relevant factors by focusing on three main meta-factors, or categories, that should be used as a balancing test: the identity of the parties before the court, the nature of the claim being litigated, and the effect the remedy would have on the courts where the claim is being litigated--"who," "what," and "where," respectively. The balancing of these three meta-factors will enable district courts to weigh more clearly whether nationwide injunctions are proper and will also give appellate courts a framework for reviewing whether district courts have abused their discretion by issuing this type of relief. [ABSTRACT FROM AUTHOR]

The article discusses the decision by the Florida First District Court of Appeal in Arena Football League v. Bishop. The case addressed the eligibility of a player named Bryon Bishop to receive workers' compensation for an injury he sustained during a team tryout. The court examined the validity of an employment contract existed between the player and the Arena Football League (AFL).

Certifying a class is the first and most important step in bringing a claim as a class action. For certain plaintiffs, especially those suing on the basis of a contract like royalty owners of oil and gas leases, the class action is the only practical means of bringing a claim against the oil and gas production companies. In the past few years, the Supreme Court has raised the standard for Rule 23 class certification requirements. Over the same timeframe, circuits like the Fifth Circuit have reversed numerous orders certifying classes. Royalty owners are especially susceptible to unfavorable review because a reviewing court can point to minute differences within leases as the reason why the class fails to satisfy Rule 23. Rather than focus on the requirements of Rule 23, this Note examines the relationship between the circuit and district courts and the standard of review that should govern the circuit courts' review of a certification order. There is a consensus that the abuse-of-discretion standard applies to review of certification orders, but the ambiguous definition of abuse of discretion has allowed circuit courts free reign when reviewing classes. To maintain the class action as a managerial tool for the district court, this Note proposes two solutions. First, the Note explains that codifying the abuse-of-discretion standard in Rule 23 will prevent circuit courts from circumventing the standard and push circuit courts to treat abuse of discretion as an independent standard. Second, the Note argues that each issue within the certification order falls somewhere along the abuse-of-discretion spectrum, and the Note provides examples from royalty litigation to illustrate how the spectrum should operate. These steps remedy the current imbalance of power between circuit and district courts regarding the decision to certify a class. [ABSTRACT FROM AUTHOR]

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from "under-ruling" the older Supreme Court precedent. This prohibition on "under-ruling," here referred to as the "Agostini Rule," reflects a departure from the core rule-of-law values requiring similar cases to be decided similarly. The Agostini Rule enables the Court to avoid following its own precedents, without explanation. Thus, the Court possesses significant latitude when making policy decisions, only increasing the importance of a Justice's life tenure. The failed nomination of Merrick Garland to the Supreme Court magnified the ramifications of the "under-ruling" prohibition, as political mobilization against Garland revealed the belief that replacing Justice Antonin Scalia with a Democratic President's nominee would have enormous consequences. This article proposes a legislative remedy to "under-ruling" by requiring Congress to amend the statutes governing the Supreme Court's jurisdiction to allow federal circuit courts to certify cases for, and effectively "force," mandatory Supreme Court review. Consequently, the Supreme Court would no longer be able to evade its older precedents. This more consistent and transparent Court would both revive faith in the rule-of-law and improve the confirmation process, preventing any potential confirmation gridlock. [ABSTRACT FROM AUTHOR]

The article deals with the use of statistical sampling by U.S. district courts to prove liability in False Claims Act (FCA) cases concerning healthcare fraud. It explores the outcome of the case United States ex rel. Michaels v. Agape Senior Community Inc., as well as the impact of court decisions on future FCA and qui tam litigation. Courts are advised to use a more reasonable approach in a bellwether trial to determine whether there is sufficient evidence to prove a fraud claim.

The article focuses on the judgment of the U.S. District Court for the District of South Carolina in the Haskins v. 3M Co. court case. It mentions that the court excluded expert testimony in this case concerning asbestos. It presents views of physician Carlos Bedrossian on the malignant mesothelioma which is a result of repeated exposure to asbestos. It also mentions that John E. Haskins and James W. Chesher have also served in the U.S. Navy.

The article presents a case where the Students for Fair Admissions (SFFA) has filed a complaint against the Harvard College in a federal district court. It mentions that SFFA has claimed that Harvard discriminates against Asian Americans by holding them to higher admissions standards than other racial group, including whites. It also mentions about judgment of Supreme Court in the U.S. concerning discrimination against Asian students in colleges in the U.S.

Using a novel sample of 83,260 lawsuits filed in US Federal District courts, we extend the results of prior studies investigating market value and reputational losses due to corporate misconduct. We examine alternative explanations for the loss in market value, such as media coverage, the expectation of subsequent litigation, and the defendant's willingness to settle, in addition to previously documented factors. Our results suggest that with the exception of securities litigation, this loss in market value can be attributed to these alternative explanations rather than to reputational consequences. This finding is confirmed by several indirect measures of reputation loss. [ABSTRACT FROM AUTHOR]

The U.S. Sentencing Guidelines represent a uniform set of formal rules that are implemented across a broad range of diverse social contexts. Drawing from neo-institutional theory and kindred perspectives on criminal courts, we argue that the federal courts represent an organizational field in which local influences play a key role in conformity to institutional rules. We use unique survey data from federal judges, aggregated to the district court level and combined with individual-level federal sentencing data, to examine hierarchical models of judicial departures from the Guidelines. Our analysis includes more proximate measures of court community culture than prior research. We find that the collective views of federal judges, including their perceptions of the degree of regulative constraint posed by the Guidelines, as well as the extent to which the Guidelines are normatively and morally legitimate, are intimately related to variation in judicial Guidelines departures across district courts. [ABSTRACT FROM AUTHOR]

In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them "the right of taking fish in common with" white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes: (1) a share of fish harvests for subsistence, cultural, and commercial purposes; (2) inclusion of hatchery fish in that harvest share; and (3) protection of the habitat necessary for the salmon that were the basis of the treaty bargain and the peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee persuaded the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third issue, declining to declare that the treaties supplied habitat protection in the absence of a specific factual dispute. Some two decades later, in 2007, the tribes and the federal government convinced United States District Court Judge Ricardo Martinez that the state's construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting the state's allegations wholesale. This Article examines the reasoning of both the district court and the Ninth Circuit and the path ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity. Moreover, the Ninth Circuit's reliance on foundational rules of treaty construction to interpret the scope of the treaty right of taking fish could influence other Indian treaty cases beyond the issue of off-reservation fishing rights. Even if confined to treaties with off-reservation rights, the case represents the most significant interpretation of treaty fishing rights in nearly four decades. [ABSTRACT FROM AUTHOR]

The article discusses America's spoliation of evidence doctrine in relation to electronically stored information (ESI), pre-trial discovery processes, and a December 2015 amendment to Rule 37(E) of the U.S. Federal Rules of Civil Procedure. American electronic discovery (e-discovery) is addressed, along with the nation's district courts and the case Zubulake v. UBS Warburg LLC which deals with a duty to preserve evidence. Intentional spoliation is assessed.

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding-dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in judges' practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court's increasing embrace of judicial hierarchy. [ABSTRACT FROM AUTHOR]

The author talks about the recollections of how the circuit and district court functioned in courthouse at Seventh and Mission Streets in San Francisco. Topics discussed include his experience as U.S. Ninth Circuit judge; mention of Thiel v. Southern Pacific Co. court case; and functioning of the courthouse.

Many standards development organizations ask participants who hold patents that may be essential to practice a standard to agree to license those patents under "reasonable and non-discriminatory (RAND)" terms. But what exactly are RAND terms? This article discusses the policy of RAND obligations, explains how disputes can arise about whether a proposed license to a standard-essential patent includes RAND terms, and explains how a particular dispute over RAND terms was resolved in a United States district court. [ABSTRACT FROM PUBLISHER]

Do federal magistrate judges make different decisions and produce distinct judicial outputs from district judges? To provide initial empirical evidence on this question, this study utilizes federal district court data covering issue areas including employment discrimination, broader civil rights, intellectual-property rights, and personal-injury torts. The data indicate that magistrate judges are actively involved in civil cases, with as many as sixty-seven percent of cases having one or more magistrate judges serving in some role. These magistrate judges commonly preside over settlement conferences, decide discovery motions, issue reports and recommendations on dispositive motions, preside over status, management, and scheduling conferences, and serve as the assigned judge in the case by the consent of the parties. While there are numerous areas where there is no statistical difference in the outputs of magistrate judges and district judges, notable differences include grant rates of discovery motions, the likelihood of cases settling, appeal rates, the number of days to case resolution, the number of docket entries before case resolution, and the likelihood of opinion publication. The results may be due to differences in behavior between district judges and magistrate judges or, instead, may be driven by non-random opinion assignment practices. This project also provides empirical insight into two additional, closely related questions. For the first question of whether prior experience as a magistrate judge affects district judge behavior, the data reveal that differences in settlement probabilities again emerge. The data also show a lower rate of report and recommendation non-adoption, and a higher number of words and citations per opinion among district judges with magistrate judge experience than those without that same background. For the second question of whether magistrate judges who receive future Article III district court appointments behave differently from their magistrate colleagues who do not, the data indicate that future district judges have higher grant rates on discovery motions and lower rates of appeal than other magistrate judges. There are also no instances in the data of these future appointees having their reports and recommendations not adopted. The article ends with an encouragement of additional data collection efforts on magistrate judges’ decisions and activities to further the systematic inquiry into this important subject. [ABSTRACT FROM AUTHOR]

The relationship between United States district judges and United States magistrate judges is unique within the American judiciary. United States magistrate judges are the first judges encountered in most federal civil or criminal cases and play an increasingly important role in the adjudication of virtually every case in United States district court. Yet, while the behavior of Article III judges has been the subject of active academic scrutiny, the behavior of magistrate judges, who are appointed to renewable eight-year terms by their Article III district judge colleagues, has largely been ignored.1 This paper reports the results of interviews of thirty-four magistrate judges and district judges, and through their experiences, explores whether their judicial decision-making relationship, a motivation for reappointment, or elevation to Article III status influences their judicial behavior and that of their district judge colleagues. The answers to these questions are nuanced and dependent on variables not previously considered, and are best understood in the context of the remarkable evolution of the Magistrate Judges System, which has existed for less than fifty years. [ABSTRACT FROM AUTHOR]

The relative ease with which corporate fraud went unnoticed during the Enron scandal created tension between Congress and the public. In hindsight, the public questioned the difference whistleblowers could have made if they were adequately protected. Since 2002, the Sarbanes-Oxley Act ("SOX") has provided anti-retaliation protection to employees of publicly traded companies. However, the language used in the whistleblower statute raises the question: Does SOX extend coverage to employees discharging their duties? The district courts have thus far correctly interpreted SOX as extending coverage to employees discharging their duties. Although this issue has only manifested itself in the district courts, it is crucial that Congress remain vigilant--foreseeing the consequences that would arise if courts start to deny whistleblower protection to those best suited to blow the corporate whistle. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court's ruling in the 1938 diversity jurisdiction case Erie Railroad Co. v. Tompkins (Erie) in relation to a debate about whether a U.S. federal district court that is hearing a case under its diversity jurisdiction is required to use the preliminary injunction standard that would be applied by a court of general civil jurisdiction where the federal court is located. American civil procedure, forum shopping, and legal presumptions are assessed.

The article discusses the court case Sissel v. United States Department of Health & Human Services. Particular focus is given to how this case relates to constitutional law, the Origination Clause and the Affordable Care Act (ACA). Details relating to how the court case took place in the United States District Court for the District of Columbia are also offered.

The article focuses on the decision of the U.S. District Court of the Northern District of California Mathew Enter., Inc. v. Chrysler Grp. LLC. regarding the antitrust law. It mentions that price discrimination claims against the automobile dealer Chrysler Group LLC. It mentions that the price reductions in violation of Section 2(a) of the Robinson Patman Act (RPA).

There have been recent conflicting decisions in U.S. district courts of New York, Delaware, and others states regarding to the enforceability of make-whole provisions in bankruptcy. The ambiguity created by the courts' decisions has caused uncertainty for all parties involved in these kinds of loan documents. This comment is an analysis of the enforceability of make-whole provisions in the context of bankruptcy in light of the recent decisions. In order for a makewhole or a no-call provision to be upheld, a number of hurdles must be cleared. The provisions must be valid under both state law and bankruptcy law. Make-whole provisions are generally enforceable outside of bankruptcy under state law to the extent that they are not true penalties under a liquidated damages analysis. Once bankruptcy comes into play, the provisions must withstand a number of hurdles. In order to be enforceable in bankruptcy, a make-whole provision must be a valid liquidated damages claim under state law, it must be provided for and triggered under the contractual agreement, and it must not be tantamount to unmatured interest. [ABSTRACT FROM AUTHOR]

The article focuses on submerged precedents, reasoned opinions which are only available on court dockets and not on Lexis and Westlaw commercial databases. Topics include comparison of district court decisions on dockets and in Westlaw in the U.S., implications of submerged precedents for the role of district courts in shaping law and for precedent theory, and influence of technology on precedent-based civil justice system.

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades. This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt to understand long-term patterns in the filing data as well as short-term deviations from various trends. This data-driven approach has yielded insights in relation to such diverse topics as Internet filesharing litigation, the true impact of patent trolls on the level of patent litigation, and the extent of forum shopping and forum selling patent litigation. Just as importantly, this Article lays the foundation for planning and evaluating future empirical studies of IP litigation with a narrower focus. Many of the results and conclusions herein demonstrate the dangers of basing empirical conclusions on narrow slices of data from selected regions or selected time periods. [ABSTRACT FROM AUTHOR]

This case comment analyses the appropriateness of the 60/40 written/oral weighting of the promotional exams challenged by Briscoe. The plaintiff claimed that the oral exam had less disparate impact on African Americans, was a better way to access candidates' ability and hence should be weighted more. The comment shows that when more weight is given to the oral exam, the number of African American promotions 'increases', but the number of Hispanic promotions and the total number of minority promotions 'decreases'. Furthermore, the analysis demonstrates that for most of the written/oral weightings, including the one advocated by the plaintiff, the number of African Americans who would be promoted to lieutenant remains the same, supporting district court's conclusion that the weighting used by the City did not have disparate impact on African Americans 'as a race'. In addition, the comment illustrates that even though the oral exam had less disparate impact on African Americans, it had 'more' disparity on Hispanics. Considering minority candidates as a whole group, the disparities of the oral and the written exams were about the same. [ABSTRACT FROM AUTHOR]

In its 2005 decision in Granholm v. Heald, the U.S. Supreme Court declared that state alcoholic beverage laws that discriminate against outof- state entities are unconstitutional restrictions of interstate trade under the dormant Commerce Clause. Despite this holding, lower courts have split in their analyses and conclusions regarding protectionist alcoholic beverage laws. Specifically, the Eighth Circuit recently upheld Missouri's residency requirements for alcoholic beverage distributors. Meanwhile, a district court in Michigan has found that a similar law imposing residency requirements on alcoholic beverage retailers was an unconstitutional restriction of interstate commerce. This confusion adversely affects both consumers and smaller producers of alcoholic beverages. Therefore, this Note argues the Supreme Court should, in the appropriate case, clarify that Granholm applies to residency requirements for wholesalers and retailers, thereby subjecting these restrictions to heightened Commerce Clause scrutiny. [ABSTRACT FROM AUTHOR]

This Article identifies and organizes the circumstances in which national courts play a role in international commercial arbitrations--border crossings. It then records and analyzes empirical data of these border crossings in cases filed in a key national court for international arbitration-related litigation: the US District Court for the Southern District of New York. Data were collected from the date of entry into force for the United States of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") on December 29, 1970 to September 15, 2014. Based on interpretation of these data, the Article suggests how to regulate the border crossings to best balance the policy goals of international commercial arbitration with reasonable allowances for national sovereignty and fidelity to the New York Convention. [ABSTRACT FROM AUTHOR]

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the plaintiffs have Article III standing to pursue claims. Many of the district courts hearing data breach claims have refused to grant standing because of their interpretation of a recent case addressing constitutional standing, Clapper v. Amnesty International. These courts have concluded that Clapper represents a "tightening" of the traditional standing test under which data breach plaintiffs ' claims that they will suffer harm are too speculative. These courts are misguided in their analyses. First, the Supreme Court's decision in Clapper was based on an especially rigorous application of the traditional standing test due to constitutional and national security concerns present in the case. Data breach claims should not be subject to this same level of rigor. Second, these district courts are misreading Clapper to require a demonstration of an injury in data breach cases that is not necessary. These courts are looking for some type of quantifiable injury stemming from the data breach when all that Clapper requires is a demonstration that the plaintiffs' data was lost in the breach. Courts should subscribe to this more accurate application o f the standing test and of Clapper to grant data breach plaintiffs the day in court to which they are entitled. [ABSTRACT FROM AUTHOR]