Federal Courts

The New Military Federalism

June 29, 2018

Although it was not exactly a headline-grabbing ruling, the Supreme Court’s decision last Friday in Ortiz v. United States will likely receive a fair amount of academic attention, especially from Federal Courts casebooks, thanks to its long-overdue analysis of the types of disputes (and nature of the tribunals) over which the Court may exercise direct…

Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity?

April 17, 2018

Today, the Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b)…

Will the Federal Judiciary Remain a Check and Balance After Trump?

February 16, 2018

Donald J. Trump is no stranger to the power of judges. As a businessman, he bragged about how he used lawsuits to protect his brand and to dodge bad investments through the bankruptcy process. Then, as a candidate for President, he showed his clear disdain for the independent role that judges play in our democracy….

An Old Solution to the Nationwide Injunction Problem

January 25, 2018

Samuel Bray’s Multiple Chancellors: Reforming the National Injunction addresses what has increasingly become the recipe for legal challenges to federal policies. File suit in a division with judges—or best of all a single judge—expected to be favorable to the challenger’s claim. Make sure that district is located in a circuit also predisposed to your legal…