Missing Decisions and the United States Court of Appeals for the Federal Circuit
Merritt McAlister’s Missing Decisions is an important contribution to our understanding of civil procedure, judicial decisionmaking, and the law itself. McAlister’s study demonstrates that many merits terminations by federal appellate courts aren’t readily accessible to the public, nor do they show up in major legal research databases like Westlaw, Lexis, and Bloomberg.
Two of the limitations of Missing Decisions are that it relies on summary statistical tables to quantify the portion of merits terminations that are “missing,” and that it doesn’t include the United States Court of Appeals for the Federal Circuit because its statistical tables are in a different format than those of other circuits. Yet, the Federal Circuit is a prime candidate for understanding the issue of “missing decisions.” It is a court that has employed summary decisionmaking to a great extent, even as it is perhaps the most scrutinized court aside from the Supreme Court.
Making Sense of Immigration Law
I want to thank both Clare Huntington and Peter Schuck for writing such thoughtful replies to my article, Immigration Law’s Organizing Principles (Organizing Principles). The article’s central argument is that immigration law draws a sharp moral and constitutional distinction between rules that select migrants and rules that regulate migrants out of the selection context, but that in practice this distinction has been incoherent and misleading. Both Schuck and Huntington agree that the conceptual distinction between immigrant-selecting and immigrant-regulating rules is problematic. Yet they both resist my claim that the distinction is used by immigration scholars and the courts in a way that is incoherent. This claim is too strong, both argue, because there is some meaningful distinction between the two types of rules—even if the distinction does "collapse to some degree." To put it simply, they believe that the distinction is imprecise, while I believe that it is incoherent in practice.
Huntington’s and Schuck’s critiques are extremely productive in the context of a colloquy because I believe their positions reflect widely held sentiments at which my article takes aim. In that sense, their replies confirm my claim that the conceptual distinction has been—and continues to be—a central organizing principle of the field. In this short response, there is not sufficient space for me to rehash Organizing Principles‘ full explanation of why the stronger claim is correct and why the difference between the stronger claim and the weaker claim of fuzziness is extremely important for the future of immigration law. Instead, I will try to use this short response to show the ways in which Schuck’s and Huntington’s essays embody some of the same conceptual mistakes that I believe infect the field as a whole. My hope is that, by unpacking the analytic structure of their arguments, I can bring into even clearer focus the precise claim I am making in Organizing Principles.
The Unusual Man in the Usual Place
I wish to express my warm thanks to Professors Stephanos Bibas, George Thomas, and Ron Wright for their thoughtful responses. I am...
Excluding Religion: A Reply
Disputes concerning exclusions of religion have continued to flare up during the last year. A school district in New Jersey was sued for...