Law of Case Doctrine

George Washington Law Review, 2014

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Although the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation of powers values that motivate the rule. This Article conducts such an investigation — focusing on judicial review of agency immigration adjudications and reviewing the more than 400 published court of appeals decisions that have addressed the remand rule since the Court rearticulated it in 2002. This Article finds that courts generally fail to appreciate the dual separation of powers values of Article I legislative and Article II executive authority at issue and that some circuits have not been faithful to this command. Courts that refuse to remand seem to do so when they believe the petitioner is entitled to relief and remand would unduly delay or, worse, preclude relief because the petitioner would get lost in the process. In refusing to remand, courts express perceived Article III concerns of abdicating their authority to say what the law is and to ensure that procedures are fair and rights are protected in the administrative process. In reviewing the cases, however, this Article uncovers a novel set of tools that courts have developed to preserve their role in the process and enhance the court-agency dialogue. Instead of ignoring the remand rule, this Article suggests that courts should utilize and further develop this dialogue-enhancing toolbox to exercise their constitutional authority while preserving the delicate balance of powers between courts and agencies via the ordinary remand rule.

21 Southern Law Journal 41, 2011

2004

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through jury trials in affected communities. Yet, if transferee judges remanded cases after overseeing discovery into common issues, they could alleviate those concerns while avoiding inconsistent rulings on common questions and streamlining discovery. Despite the potential upside, remand rarely occurs because it disfavors those with litigation control — transferee judges, lead plaintiffs’ attorneys, and defendants. Transferee judges deem settlement a hallmark of their success. Lead plaintiffs’ lawyers try to increase their fees by inserting fee provisions into settlements. Likewise, plaintiffs’ attorneys can bypass doctrinal uncertainties over weak claims by packaging plaintiffs together in a global settlement. And aggregate settlements allow defendants to resolve as many claims as possible in one stroke, take their hit, and return to business, which their shareholders view as a net positive. The remand process itself defers to these vested interests. Although the Panel could remand cases at a party’s request, in practice it appears never to have done so. Rather, it waits for the transferee judge to admit defeat and suggest remand — thereby conceding failure. For transferee judges to begin remanding cases, the “pro-settlement” norm and “remand-as-a-failure” stigma must change. Accordingly, transferee judges should routinely entertain a suggestion for remand by a party or initiate them sua sponte as soon as discovery on common issues concludes and only case-specific issues remain. Likewise, the Panel should seriously consider parties’ remand requests even when the transferee judge does not support them. This reopens a direct line for parties to request remand when common discovery ends, but the transferee judge prefers to hold cases hostage in hopes of coercing settlement.

American Business Law Journal, 1997

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge.The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide Article III justiciability and subject-matter jurisdiction before ruling on the merits. The Beacon Theatres-Dairy Queen rule requires a federal trial judge to avoid preclusion by giving first to the jury a factual issue common to the merits of both law and equity claims for relief joined in the same case.

63 Duke Law Journal 1835, 2014

The U. S. Tax Court (Tax Court), which hears the vast majority of litigated federal tax cases, occupies an unusual place in the federal government. It is a federal court located outside of the judicial branch, but its decisions are appealable to the federal courts of appeals. This odd structure, coupled with the court's history as an independent agency in the executive branch, can give rise to important questions, such as the standard of review that should apply to its decisions. In particular, should the courts of appeals treat Tax Court decisions the same as those of district courts in tax cases, or should they apply a more deferential standard analogous to review of agency decisions, as the U.S. Supreme Court held in 1943 in Dobson v. Commissioner?