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Abstract:
Almost all of the Supreme Court's cases reach its docket through discretionary grants of writs of certiorari. Sometimes the Court reverses course and dismisses the writ of certiorari as improvidently granted, or DIGs the case. The Court's use of DIGs raises a set of intellectually challenging and interrelated empirical and jurisprudential issues that have received relatively little attention in the scholarly literature. This article fills that gap in several ways. First, it comprehensively documents the cases the Court has DIGed in the Warren, Burger and Rehnquist Courts (1954 through 2004 Terms). It then considers related empirical issues, including whether these cases share characteristics, how often the Court collectively or through the opinions of individual Justices justifies, or criticizes, the DIG, and how often the issue raised in a DIGed case returns to the Court in subsequent litigation.

The article then revisits several jurisprudential issues that have been the subject of some debate on the Court itself and in the scholarly literature. Chief among these is how DIGs potentially undermine the long-accepted norm that only four votes are necessary to grant certiorari. The conventional though not universally accepted response is that to support the Rule of Four, at least six votes should be necessary to DIG a case. Support for this position on the Court is strong though not absolute, and the article explores why the Rule of Six for DIGs has enjoyed robust if not ironclad support. The article then turns to the reasons that ought to justify a decision to DIG, and whether the Court should issue opinions explaining the DIG. In over half of the cases, the Court has not issued such opinions, either collectively or through individual Justices. The article closes with an examination of whether DIGs should be conceptualized as an example of strategic behavior by the Justices, and concludes that in most instances that characterization is not warranted.

Supreme Court, DIG, Federal Courts

Abstract:
A relatively neglected aspect of the many strands of judicial federalism is the review by the United States Supreme Court of decisions on federal law by state courts. The Supreme Court has undertaken such review almost from its inception, but this article considers two apparent shocks to this review, one recent and well-known, the other one more long-standing and less the subject of comment. The first is Bush v. Gore (2000), where the Supreme Court reversed a decision of the Florida Supreme Court, thus resolving the post-presidential election controversy in favor of Texas Governor George W. Bush. The Florida court's decision, ordering manual recounts of votes, was ostensibly based on state law, yet the Supreme Court majority (or at least three Justices thereof) disagreed with the state court's interpretation of its own law, in order to reach federal legal issues. Much can, will, and should be said about Bush v. Gore, but the question is whether the majority's aggressive review portends a new role for the Court for other state court cases.

The second, less noticeable but potentially as profound a shock to the understood system of Supreme Court review is the Court's decreasing caseload. Through most of the 20th century the Court was deciding well over 100 cases per Term, and as late as the mid-1980s the number was almost 150. But starting in 1990 the number began to sharply spiral down, and for much of the 1990s the Court was only deciding 70 to 80 cases per Term. The likelihood of review of any given decision, not high to begin with, is even lower today. What might account for the Court's shrunken caseload, and what are its implications for state court decision-making?

This paper addresses some of these questions. Part II considers the effect of Supreme Court review on the development of state constitutional law. After briefly surveying the history of Court review of state court decisions, and of the New Judicial Federalism, Part II addresses the impact of two controversial Supreme Court decisions: Michigan v. Long (1983), in which the Court held that review of federal issues was possible, unless the state court plainly stated that it was relying on state law, and the aforementioned Bush v. Gore. Part III of the paper turns toward the Supreme Court's shrunken docket, and in particular its possible impact on the adjudication of federal issues in state courts. Finally, Part IV considers the role of state intermediate appellate courts regarding the issues raised in Parts II and III.

Abstract:
This essay reviews John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides With the States (Berkeley, University of California Press 2002). Judge Noonan's monograph is a critical review, by a well-known jurist, considered conservative in most circles, of the federalism decisions of the Rehnquist Court. Part I of the essay surveys Noonan's arguments, focusing mainly on his critique of the Eleventh Amendment cases. Liberal academics have been sharply critical of those cases. Part II considers what the position of conservatives has been, or should be, on those cases, especially given that the cases largely ignore interpretative methodologies favored by conservatives in other cases. The first two parts of the essay are mainly concerned with formalist arguments. Drawing on arguments made by Noonan, the third and fourth parts engage in a more pragmatic critique of the cases. Part III considers why the Rehnquist Court has seemingly decided so many cases raising Eleventh Amendment issues, and suggests that one of the reasons is the activism of state attorneys general in aggressively litigating the cases, as parties amici curiae, in the Supreme Court. An empirical study of the states' amicus-activity in such cases is presented. Part IV revisits additional rationales for, and empirical effects of, the Eleventh Amendment cases. With regard to the former, the essay addresses whether current doctrine has some functional justifications. With regard to the latter, the essay revisits claims that gaping exceptions to the doctrine, taken together with the purported availability of state law remedies, considerably ameliorates the supposed negative effects of the doctrine on the enforcement of federal law. The essay's conclusion briefly outlines an alternative path the conservative Justices could have, and perhaps should have, taken in shaping Eleventh Amendment doctrine.

Federalism, Eleventh Amendment

Abstract:
This commentary will be published in volume 81, issue 1 of the Indiana Law Journal. The commentary was submitted to the Symposium on the Next Generation of Law School Rankings in response to other papers published in the symposium issue.

From the commentary:

I will address three points about the rankings in this Commentary. First, I will address the argument that the rankings are normatively desirable to facilitate a tournament among law schools. I will consider how well the tournament model applies to institutional, as opposed to individual, participants, and how much law schools compete against each other, as envisioned by the model. Second, both the tournament model and other commentary generally supportive of rankings usually assume that more information about law schools is better. Here, I address whether the pre-rankings era was as informationally deficient as is often assumed, and whether additional information in the present day is likely to be especially useful to law school applicants, or other audiences. Finally, I discuss why, despite the many criticisms of the rankings and their limitations acknowledged even by their supporters, the U.S. News rankings were quickly embraced by an attentive public. I link this continuing embrace by law professors and their students with the apparent fascination with rankings and status by American culture at large.

Law School, Rankings, Legal Education, U.S. News & World Report

Abstract:
The burgeoning commentary on the two important election law cases, Randall v. Sorrell and LULAC v. Perry, decided by the Roberts Court at the end of the 2005 Term, has paid relatively little attention to the procedural posture of the cases and the institutional processes by which they were reviewed by the Court. This article explores such elements by focusing on the role of the unique procedural aspects of some election law cases, such as the use of three-judge district courts with direct appeals to the Supreme Court. These factors shed light on the Court's decision to decide the cases in the first instance, as well as on the eventual content of the decisions. The article considers several examples of these institutional processes, including the impact of the direct review provisions established by Congress in some election law cases, the use of three-judge district courts, and the effect of these institutional factors on agenda setting in the Supreme Court and the impact on decision making in the lower courts. The article concludes by situating these institutional processes in the ongoing debate over the propriety and level of the legalization of the law of democracy.

Election Law, Federal Courts, Three-Judge District Courts, Supreme Court

Abstract:
Plaintiffs must satisfy certain standing requirements before they may bring a civil action in federal court. Typically a plaintiff must have been injured in particular way, the injury was caused by the defendant's conduct, and it is capable of being redressed by the relief granted by the court. This article, a contribution to a symposium on Access to the Courts in the Roberts Era, revisits these requirements in light of (1) several cases decided in the early years of the Roberts Court, (2) the new members of the Court, and (3) the considerable and continuing scholarly debate over the role of Congress in statutorily providing for Congress.

Part II of the article briefly sets out the standing requirements. Part III addresses the views on standing of the most recent additions to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, before they joined the Court. Part IV addresses, in three sections, the standing decisions of the initial Terms of the Roberts Court. The first section of that part discusses and dismisses the utility of a purely originalist approach to determining standing. The second section discusses recent cases which have addressed the limitations separation of powers concerns place on standing sought by taxpayers, or by states as plaintiffs. The third section considers from various perspectives the role of Congress in providing for standing by statute, and the appropriate response of federal courts in applying those statutes. The article concludes in Part V by addressing the likely future of standing in the Roberts Court and in the Obama Presidency.

Standing, separation of powers

Abstract:
In 1908 the Supreme Court held in Ex parte Young that a federal judge could enjoin a state attorney general from enforcing an unconstitutional state statute, notwithstanding sovereign immunity doctrines which would normally bar such relief. The case was sharply criticized at the time, as another example of an activist federal judiciary striking down Progressive Era regulatory legislation. Congress enacted legislation requiring that Ex parte Young injunctions could only be issued by a specially convened three-judge district court. Despite the initial hostility, as has been recounted by Owen Fiss, William Ross, and other scholars, the injunctive power recognized in the case came to be regarded as a powerful and necessary tool to enforce federal civil rights laws, especially in the face of recalcitrant state authorities. In contrast, the history of the three-judge district court has received less attention and has had a different arc. During the Civil Rights era, some federal judges, particularly in the deep South, were perceived as being hostile to the enforcement of federal law, and a three-judge court was considered by many to be a necessary tool to marginalize such judges and optimize enforcement of federal legal norms. The usefulness of the court was later questioned by the leadership of the federal judiciary itself, due to the administrative burdens of convening such courts, and the perception that its role in enforcing federal law was no longer necessary. Responding to those concerns, and over the opposition of the NAACP, Congress in 1976 sharply restricted the jurisdictional coverage of the court. The changes in the three-judge district court demonstrate the importance of appreciating the motivations and effects of Congressional regulation of the institutional structures of the federal courts, and that of interest groups in influencing Congress.

Injunctive power, federal courts, congressional regulations, civil procedure, three-judge provisions

Abstract:
American aversion to nepotism can be traced back to the Revolutionary Era and its hostility to a hereditary monarchy. Today anti-nepotism policies remain popular in both the private and public employment settings, yet family ties are nonetheless common in elective or appointive political offices. In judicial offices, particularly at the federal level, such ties are not very common, but there have been a few examples of family ties, and there is a federal statute which limits the appointment of family members to the same federal court. Those instances, and the statute, are the subject of this Essay.

The Essay discusses how the heretofore obscure federal statute came to prominence during the debate over one of President Clinton's judicial nominees and how the statute was amended during that debate to make its anti-nepotism component more explicit. The Essay addresses whether the statute is constitutional in light of separation of powers and the President's authority to appoint federal judges. Relatedly, it evaluates the policy concerns of the statute and discusses in greater detail two pairs of closely related federal judges who served on the same court: first cousins Learned and Augustus Hand on the United States Court of Appeals in the Second Circuit, and brothers Richard and Morris Shepard Arnold on the Eighth Circuit. This Essay concludes with some observations on the desirability of anti-nepotism rules in the judicial context.

Federal Courts, Nepotism, Judicial Nominees, Judges

Abstract:
Several en banc decisions from the Ninth Circuit, and other circuits, raise issues regarding the institutional processes by which the circuits rehear panel decisions en banc, and whether and to what extent these processes should be more transparent. This article critically examines these issues, on which judges have taken a variety of divergent positions. First is whether the vote tallies of the circuit on motions to rehear panel decisions should be made public. Second is when, if ever, judges should publish opinions concurring in or dissenting from the denial of rehearing en banc, as well as the appropriate content of those opinions. The third issue is whether the likelihood of Supreme Court review of a case should influence a circuit in deciding to rehear a panel decision en banc. Several Ninth Circuit cases will serve as the focal point, though not the exclusive one, of the discussion of these issues.

En Banc, Institutional Processes, Circuit Decisions

Abstract:
This article is a contribution to a conference on "Dual Enforcement of Constitutional Norms." It focuses on the adjudication of federal constitutional rights in state courts. The conventional wisdom in many quarters is that given the countermajoritarian nature of many such rights, and the presumption that most state judge are subject to electoral pressures, that state courts are not in parity with federal courts when it comes to litigating and vindicating such rights. The best known proponent of this view is Burt Neuborne in his "The Myth of Parity" article in 1977. Taking exception to some aspects Neuborne's thesis was an article by the late Paul Bator, "The State Courts and Federal Constitutional Litigation," in a symposium in the William and Mary Law Review in 1981. Bator considered, among other things, why state courts should be permitted to adjudicate federal rights at all, when state courts should be the initial forum for litigating federal rights, and when and how federal courts should defer (if at all) to prior adjudication of federal rights in state fora.

The present article revisits the issue of parity in the context of re-evaluating Bator's article. Part I of the article discusses the empirical studies of parity that have appeared since the publication of the Nueborne and Bator articles. Part II focuses on the prospect of disuniformity in the application of federal rights by the large number of state courts, and problems associated with the ability of the U.S. Supreme Court and lower federal courts to monitor that application through the certiorari and habeas corpus process, respectively. Finally, Part III addresses how a variety of prospective changes to state court institutions affect parity. This includes the convergence of civil and criminal procedure in federal and state courts, and possible reforms of judicial selection and election processes for state courts.

Parity, Constitutional Law, Habeas Corpus, Federal Courts

Abstract:
Federal Rule of Civil Procedure 41(a), and its state law counterparts, permit under certain circumstances a plaintiff to voluntarily dismiss her lawsuit without prejudice. Within certain windows of opportunities, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has developed an unwieldy set of factors to guide trial courts in attaching conditions to the plaintiff seeking dismissal of a case.

In this article, we advance several ways to rationalize voluntary dismissals. While Federal Rule 41(a), and its state law counterparts, need some refinement, we endorse its allowing a small window of opportunity at the beginning of a suit for plaintiff to dismiss without prejudice, with no conditions attached. When that window is closed, plaintiff can still obtain dismissal of her suit, either by obtaining the defendant's or the court's permission. With regard to the latter, the presumptive sole condition should be an award of reasonable attorneys' fees from plaintiff to defendant. Among the advantages of this condition is that it is much easier to administer than the current standards, fits comfortably within the language of Rule 41(a), avoids some of the pitfalls of loser pay proposals, and in part codifies the existing practice of many courts.

Civil procedure

Abstract:
In the past decade there has been a boomlet of studies, using citation analysis, to gauge the reputation or influence of particular judges. Until recently, however, there has been little systematic study of the reputation or influence of multimember courts as such. My goal in this article is to fill some of that gap by exploring the reputations - both historically and at the present time - of the individual U.S. Courts of Appeals. That is, I will compare and contrast the reputation of the thirteen (as the number stands now) Courts of Appeals: the First through Eleventh Circuits, the Court of Appeals for the District of Columbia, and the Federal Circuit.

The article proceeds as follows. Part II addresses and disentangles the concepts of reputation, prestige, and influence, particularly as they are used in the legal community. It considers various measures of those concepts, principally though not only through citation analysis. I address the pros and cons of that, and other, measures, and problems associated in attributing reputation to collective entities, like multi-judge courts. In Part III, I address efforts, both historical and contemporary, to measure the reputations of the Courts of Appeals. Initially, I consider various accounts from the popular press and other non-scholarly sources which attempt to rank the circuits. Then I turn to somewhat more objective measures, such as surveys of attorneys and federal judges, of the reputations of circuits. Finally, I consider how various studies of citation analysis of the influence of particular federal appellate judges can be brought to bear on the reputation of the circuits on which they sit.

To anticipate the conclusion: as Part III outlines, historically and to some extent to the present day, the Second and D.C. Circuits have been regarded as enjoying the most reputation and influence. Yet some, though not all, of the putatively objective measures of influence place the Seventh Circuit far above those two. In Part IV, I explore this apparent disconnect. In that Part, I conclude that a variety of factors have led, in general, to the overall homogenization of reputation among the circuits, with the notable apparent exceptions of the D.C., Second, and especially the Seventh Circuits. In the Conclusion to the Article, I briefly address whether reputation in this context remains a meaningful concept, offer suggestions for future research, and link measures of circuit reputation to the measurement of judicial performance in general.

United States Court of Appeals, Federal Courts

Abstract:
No Abstract Available

Abstract:
The scholarly literature on judicial selection systems has given considerable attention to the role that politicians and political parties play in the adoption and operation of those systems. Less attention has been given both to the role of interest groups, broadly defined, in the creation and implementation of judicial selection systems, and the effect that these systems have on the strategies adopted by interest groups to accomplish their goals. This article, a contribution to a symposium on the selection of state judges and the Missouri Plan, seeks to fill that gap. Using the framework advanced in 1975 by William Landes and Richard Posner in their seminal article, The Independent Judiciary in an Interest Group Perspective, we explore the relationships between interest groups and the functioning of judicial selection systems at both the federal and state levels. Our focal point is the seeming puzzle of why legislative bodies (and their supporters among interest groups) would ex ante establish an independent and possibly competing branch of government. We further explore the differing methods of selection of federal and state judges, the affect of interest groups on the functioning of judicial selection systems, once they are created, and the roles of interests groups as litigants and as filers of amicus curiae briefs.

Abstract:
State courts are generally free to develop their own justiciability doctrines, and Ohio courts have usually chosen to voluntarily follow those developed by federal courts. In several recent cases the Ohio Supreme Court has departed from federal doctrine and lowered the thresholds of justiciability. This Essay first summarizes the standing requirements and the political question doctrine in federal courts. Then two Ohio Supreme Court decisions are discussed in which the court permitted cases raising state and federal issues to proceed with plaintiffs who probably did not satisfy traditional standing requirements. The Essay next discusses various rationales for lowering the threshold for standing but concludes that federal standing doctrine remains optimal and should continue to be followed by Ohio courts. Last, the political question doctrine, which Ohio courts appeared to use in the past, is discussed, with the conclusion that the doctrine has weaker roots in both federal and Ohio jurisprudence and that Ohio courts can thus correctly choose not to use it in some cases. Overall, the Essay finds that Ohio courts should proceed cautiously when departing from federal justiciability doctrine and that even the constitutional prong of the political question issue can still play a constructive role in Ohio courts.

Federal Courts, Justiciability

Abstract:
As the twentieth century comes to a close, class actions are hot. Whether reading academic journals or leafing through the lay press, one cannot avoid seeing some reference to a threatened or actual filing of a proposed class action lawsuit. The United States Supreme Court has begun to pay increasing attention to the class action device, and Congress has recently enacted, or is considering, several pieces of legislation that would regulate class actions.

The class action is an increasingly popular and necessary tool in today's legal system, helping to address the claims of mass tort victims and to abrogate the injustices of civil rights violations. The class action, however, is not without its critics, and calls for changes in its structure abound.

At present, Rule 23 requires the trial court to certify, or approve of, the class before a case can proceed as a class action. The rule contains various provisions that instruct the court on which factors to consider in its determination. The court's decision, which is made as early as possible in the litigation, can control the parties' litigation strategy for the balance of the case, as a practical matter. As a result, the certification orders of the trial court often are targeted for appeal by the parties adversely affected by them. Waiting until the end of the litigation, however, before contesting the court's decision on class certification, is often not a viable option. Unhappy litigants may want to pursue an immediate interlocutory appeal of the class certification decision.

Until recently, parties seeking interlocutory relief have had few options. Due to the restraints of the final judgment rule, which permits appeal only at the end of the litigation, courts have not been very receptive to attempts to appeal interlocutory orders. Moreover, the exceptions to the final judgment rule that do exist have stringent requirements that restrict their application to a limited set of circumstances. Thus, it has been extremely difficult for litigants to gain an immediate appeal of a class certification order. In response to these constraints, the Advisory Committee on the Federal Rules of Civil Procedure promulgated an amendment to Rule 23 that would provide litigants an additional means by which to seek an interlocutory appeal.

This provision has the potential to open broad new avenues of interlocutory review of class certification decisions in the federal courts. To date, Rule 23(f) has received little scholarly attention. Indeed, the burgeoning literature on class actions has devoted relatively little discussion to the role of appellate courts in general and, in particular, to interlocutory review. This Article aims to fill in some of the gap by addressing the appellate courts' new power to grant a discretionary appeal of class certification decisions. Under the new rule, appellate judges now must decide how to decide whether to hear such appeals. This Article focuses on how Rule 23(f) came to be, and how United States Courts of Appeals should exercise the discretion granted to them in the rule.

Abstract:
The familiarity of personal jurisdiction doctrine belies the almost total absence of empirical inquiry into many of the assumptions often made in analyzing those cases. For example, there is relatively little systemic evidence on how lower courts reacted to the Supreme Court's purportedly more restrictive view of the extent of personal jurisdiction since the early 1980s, whether federal and state judiciaries typically treat such cases in different fashions, and how often plaintiffs leave their state of residence to shop for a favorable forum. In this Article, Professor Solimine describes his empirical examination of some of these questions, by retrieving and coding nearly 1000 published cases from the United States Court of Appeals, and state supreme courts, decided between 1970 and 1994, which decided personal jurisdiction issues. He finds, among other things, that the doctrinal revolution of the early 1980s is less dramatic than some think; after 1980 lower courts did find personal jurisdiction less often than before, though the differences are not striking. Likewise, there is some evidence that state courts are more likely to find personal jurisdiction, though again the difference from federal court holdings is not large. Finally, it appears that relatively few plaintiffs go outside their resident state to bring suit. Professor Solimine explores various rationales for these arguably counter-intuitive results, as well as other aspects of the study. He concludes by suggesting avenues for further empirical inquiry, which will better inform the development of personal jurisdiction doctrine than have the untested assumptions to date.

Abstract:
In recent Terms, the Supreme Court has heard numerous appeals from the decisions of three-judge district courts in controversial Voting Rights Act cases as well as in challenges to congressional districts designed allegedly to facilitate the elections of members of minority groups. Although the cases themselves have been followed closely, the institutions of the three-judge district court itself has received relatively little attention, even though Congress passed legislation in 1976 that restricted the three-judge district court's jurisdiction to reapportionment and certain Voting Rights Act cases. This article argues that numerous problems attend the formation and operation of such courts. He reviews both structural problems and administrative problems. He concludes that the court should be abolished, permitting a single district judge to consider the cases currently litigated before such courts with normal appellate review thereafter. He considers alternative reforms and critically examines proposals to expand the current jurisdiction of three-judge district courts.