Current Issue

  • Volume 65,
  • Number 7 -
  • April 2016

Articles

Joint and Several Jurisdiction
Scott Dodson & Philip A. Pucillo
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Is federal diversity jurisdiction case specific or claim specific? The complete-diversity rule makes clear that, when a diversity defect is noted in a putative diversity action, the court lacks subject-matter jurisdiction over that action as a whole. But does the court’s jurisdiction nevertheless extend to claims between diverse parties, such that the case continues if the nondiverse spoiler is dismissed?

We engage this persistent and unsettled question by identifying and exploring two possible answers, each based on a distinct theory of subject-matter jurisdiction that boasts doctrinal support. The first we denote “joint jurisdiction”—an all-or-nothing theory—under which a diversity defect contaminates the whole case and deprives the court of jurisdiction over claims between diverse parties too. The second we denote “several jurisdiction”—a claim-by-claim theory—under which the court lacks jurisdiction over claims between nondiverse parties but always had, and continues to have, jurisdiction over claims between diverse parties.

We then offer a way to reconcile these seemingly incompatible theories and precedent: shifting the time of jurisdictional assessment from the time of filing in federal court to the time of dismissal of the jurisdictional spoiler. We also discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action. Finally, we explain how the application of other jurisdictional authorizations—including the jurisdiction-to-determine-jurisdiction doctrine and the jurisdictional-resequencing doctrine—might alleviate tensions created by our time-shifting proposal.

FOIA, Inc.
Margaret B. Kwoka
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Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities, imagining the prime intended users to be journalists. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial—not public—interests dominate the landscape of FOIA requesters.

This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: third-party oversight of governmental actors. It also reveals a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit, which distorts the transparency system even further.

Counterintuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

Notes

Earned Income Tax Credit: Path Dependence and the Blessing of Undertheorization
Michael B. Adamson
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Some commentators have lamented that the Earned Income Tax Credit (EITC) is undertheorized—that its purpose is unclear—and that its design is therefore suboptimal. This Note explores the credit’s path-dependent past, which has resulted in a present-day EITC that manifests a diverse, uncoordinated assortment of policy purposes. Although the EITC’s ambiguity of purpose may yield policy inefficiencies, this Note argues that it also produces significant political benefits that would-be reformers who value the EITC’s many societal benefits should take into account before they attempt to enact any major overhaul.

Run-On Sentence: Remedies for Erroneous Career Offender Enhancements
John Patrick Bailey
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Guilty pleas have come to resolve all but a fraction of federal criminal cases. So for most federal defendants, sentencing is the criminal justice process’s most important phase. That phase begins with the calculation of a recommended sentencing range based on the U.S. Sentencing Guidelines. If a defendant has previously committed two violent crimes or drug offenses, the Guidelines designate him a career offender and drastically enhance his recommended sentencing range. The range is only advisory, but judges must consult and account for the range, and it plays an unquestionably significant role in the defendant’s ultimate sentence. What if the Supreme Court later clarifies that the defendant’s crimes were not career offender predicates after all? What if the correct inputs would have yielded a shorter sentence?

This Note examines remedies for mistakes like erroneously applying the career offender enhancement. It begins by exploring the federal sentencing system’s background and the available remedies for sentencing errors in general, including some remedies grounded in a due process right to be sentenced based on accurate information. It discusses sentencing and appellate-review practices since the Supreme Court made the Guidelines advisory, and observes how courts of appeals have treated those practices—erroneous career offender enhancements are generally curable on direct appeal, but recent appellate decisions have denied relief to prisoners who are subjected to the same errors but whose sentences had already become final. This discussion concludes by scrutinizing those cases and discussing them in the context of concerns for due process and fundamental fairness.

Pre-Twombly Precedent: Have Leatherman and Swierkiewicz Earned Retirement Too?
Lucas F. Tesoriero
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In theory, a complaint is a relatively minor part of a lawsuit, intended to initiate the litigation process. In practice, federal courts are struggling to implement the Supreme Court’s opinions inBell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. This struggle is due, in part, to the fact that neither Twombly nor Iqbal expressly overruled the Court’s pre-Twombly pleading jurisprudence. This Note focuses on how lower courts are assessing the continued vitality of two major pre-Twombly cases: Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit and Swierkiewicz v. Sorema N.A. It finds that lower courts are taking conflicting views on the status of pre-Twombly precedent and concludes that this discord has serious consequences for litigation costs, respect for stare decisis, and litigants’ access to justice.