A Modest Reform for Federal Procedural Rulemaking

Following the adoption of the amendments to the Federal Rules of Civil Procedure relating to discovery in 2000, Prof. Tobias notes the lack of empirical research or other indication of how the new rules might work in practice preceding their enactment. He suggests that Congress should reconsider a reject 1983 amendment to F.R.C.P. 83 which would authorize courts to obtain Judicial Conference approval to test promising mechanisms for five years before adoption

Animals in Christian and Muslim Thought

In this chapter, I shall offer a comparative exegesis and critical assessment of the Christian and Muslim views of animals. This chapter is divided into three parts. First, I shall examine the similarities between the Christian and Muslim views on the place of animals in creation. Second, I shall look at the two greatest moral exemplars of the two traditions. Third, I shall address the issue of diet and the broader ethical implications of killing for food. My hope is to show that Christianity and Islam are much more sympathetic to the cause of animals than it is often presumed and that these traditions can provide valuable insights into our relations with our fellow creatures

Manuscript Selection Anti-Manifesto

Joining a conversation begun by James Lindgren, An Author\u27s Manifesto, 61 U. Chi. L. Rev. 527 (1994), Prof. Tobias discusses the process of submission, review, and editorial work on articles published in student-edited law reviews. An Author\u27s Manifesto (Manifesto) constructively criticizes the amazingly arcane process of law review publication and affords salient suggestions for its improvement. The essay treats two aspects of this process-the selection of manuscripts and the editing of articles which sustain that venerable institution: student-edited law journals. Manifesto regales readers with many terrible tales of travesties which involve article editing but recounts comparatively few sordid stories that implicate manuscript selection. Because more, and more outrageous, abuses attend the wild and wonderful process of choosing articles, this piece focuses on manuscript selection-principally through the lens of my experiences and those of numerous colleagues, friends, and acquaintances. That effort has as much redeeming social value as, and is considerably more fun than, the empirical study of the publication process which Professors Gordon and Lindgren propose. I also have different perspectives than those two professors, as I teach at a law school that U.S. News and World Report recently ranked in the fourth quintile

Charles Alan Wright and the Fragmentation of Federal Practice and Procedure

Charles Alan Wright\u27s preeminent treatise, Federal Practice and Procedure, is both an eloquent testament to his capacious intellect and an enduring legacy of the brilliant scholar. Indeed, U.S. Supreme Court Justice Ruth Bader Ginsburg recently characterized Professor Wright as a Colossus [who] stands at the summit of our profession and declared that all who practice the lawyer\u27s craft profit from his prodigious production. She also praised the 54-volume compendium as by far the most-cited treatise in the United States Reports [and] the procedural Bible for federal judges and those who practice in our federal courts

Continuing Federal Justice Reform in Montana

Continuing Federal Justice Reform in Montan

Filling the California Federal District Court Vacancies

President Donald Trump frequently argues that confirming federal appellate judges constitutes his quintessential success. The President and the Republican Senate majority have dramatically eclipsed appeals court records by appointing fifty-one conservative, young, and capable appellate court nominees, which leaves merely one vacancy across the country. Nonetheless, these approvals have imposed costs, especially among the plentiful district courts that address seventy-four openings in 677 judicial positions. The most striking example is the four California districts, which realize seventeen pressing vacancies among sixty posts. The Administrative Office of the United States Courts (AO), the federal judiciary’s administrative arm, designates all of them “judicial emergencies,” which means that numerous openings have remained unfilled for a lengthy period of time, many involve substantial caseloads, and the California emergencies comprise almost two-fifths of those throughout the country. Notwithstanding the perilous situation, the White House failed to make any nomination until October 2018, to marshal prospects for eleven other empty seats before a year later, or to confirm one jurist yet. Indeed, all openings lacked nominees until February 2019, mainly because the administration had delayed resending the upper chamber three nominees whom Trump proffered in 2018. The Senate Judiciary Committee has granted merely three nominees a panel hearing, Trump only renamed on February 13, 2020 the other ten Central and Southern District nominees whom the chamber returned to the President on January 3, and the White House has failed to choose nominees for four additional vacancies. Finally, it remains unclear when the Senate will provide chamber floor debates and confirmation votes to the three nominees who secured hearings, much less when the panel will afford the other ten nominees hearings. [..

The Process Due Indefinitely Detained Citizens

A very controversial feature of the war on terror is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question. The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a South Carolina district judge to grant his habeas petition, although the Fourth Circuit overturned that decision and the government effectively mooted the Supreme Court appeal by indicting him. The war on terror\u27s indefinite character indicates that additional detainees will be imprisoned, and will pursue relief, in Fourth Circuit districts and the Fourth Circuit will decide appeals of the determinations. These ideas suggest that the Fourth Circuit war on terror jurisprudence merits review. The Article first descriptively analyzes the government\u27s use of executive authority to detain numerous Americans and non-citizens, then critically assesses Fourth Circuit resolution of habeas challenges to detention. Finding that the court\u27s jurisprudence is unclear, the Article proffers recommendations that clarify the precedent with a meticulously calibrated balance of national security and civil liberty

Transforming the Thurmond Rule in 2016

Senators vigorously dispute the Thurmond Rule\u27s meaning in the 2016 presidential election year. The Rule is a peculiar tradition. The party not controlling the White House systematically invokes the custom during presidential election years to halt judicial designees\u27 consideration until November with the hope that its standard bearer prevails and, thus, can appoint jurists. This year, Senators Grassley and McConnell characterized the tenet as \u27flexible,\u27 while Grassley declared that nominee confirmations generally end at the summer recess. Because confusion plagues definition of the stricture, and the Rule\u27s incessant use dramatically exacerbates the vacancy crisis, its perpetuation merits scrutiny. Chronic partisanship attends the Thurmond Rule\u27s deployment. The chamber needs to abolish the Rule, or at least codify and confine the approach within the Senate rules until a clear majority who favors abrogation emerges