Federal Courts

Congressional Intent and the Shadow Docket

January 24, 2020

Professor Stephen I. Vladeck’s recent essay in the Harvard Law Review entitled “The Solicitor General and the Shadow Docket” critiques the Solicitor General’s “unprecedented number of requests for emergency or extraordinary relief from the Justices,” including stays, mandamus, and certiorari before final judgment.  For example, he notes that the current administration has sought certiorari before…

Recent Order: Doe v. Trustees of Boston College

November 24, 2019

One admonishment given to young law students is to treat everyone around you well because the profession is small, and you may never know whom you will encounter again. It is not uncommon for law school classmates to face each other in courtrooms across the country. Rare is it, however, that a judge denies a…

Habeas Corpus in Wartime and Larger Lessons for Constitutional Law

April 15, 2019

This past year, I published the product of years of historical research in Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017).  In the months since, I have been asked two questions more than any others: first, why I wrote the book, and second, what, if anything, modern…

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…