Wednesday, September 30, 2015
The House Judiciary Committee held a hearing yesterday on a bill entitled “The Fraudulent Joinder Act of 2015.” Minority witness, Professor Lonny Hoffman, testified against the bill.
The bill, H.R. 3624, provides:
Section 1447(c) of title 28, United States Code, is amended by adding at the end the following:
“A motion for remand, and any opposition thereto, may include affidavit or other evidence showing a plausible claim for relief against each nondiverse defendant, or the lack thereof, or indicating a good faith intention to prosecute the action against each nondiverse defendant or to seek a joint judgment, or the lack of such a good faith intent. The district court shall deny a motion to remand if it finds that the complaint does not state a plausible claim for relief against a nondiverse defendant under applicable state law or there is no good faith intention to prosecute the action against a nondiverse defendant or to seek a joint judgment.”
Professor Hoffman explains the bill’s effect: “The bill would replace the existing common law fraudulent joinder test with a statutory test that places the burden on the plaintiff to prove that her claims against the non-diverse defendant are ‘plausible’ and brought in ‘good faith.’ Overall, the bill would make proving fraudulent joinder much easier than it is under current law.”
One of the majority witnesses, Elizabeth Milito, Senior Executive Counsel of the National Federation of Independent Business Small Business Legal Center, asserted the need for the bill:
[F]or a small business owner being served with lawsuit generates significant trepidation, disgust, and yes, uncertainty.
Because litigation entails angst and great expense for small businesses, NFIB is pleased to see this Committee’s attention focused on the issue of fraudulent joinder. Fraudulent joinder remains a source of confusion and unnecessary litigation in our courts and impacts far too many innocent small businesses. The situation unfolds as follows: plaintiffs’ attorneys will name a small business – such as a local pharmacy or insurance agent – with little connection to the complaint in order to deny the federal courts of jurisdiction. In many instances, the plaintiff has no intention of imposing liability on the fraudulently joined party. With courts divided over the standard for finding that a defendant is fraudulently joined, the small business is forced to engage in protracted litigation when all they want is to be dismissed from the case entirely.
In opposition to the bill, Professor Hoffman’s introduction summarizes his testimony:
There is no warrant for amending 28 U.S.C. §1447. More than a century old, fraudulent joinder law is well-settled and strikes the proper balance among competing policies in how it evaluates the joinder of non-diverse defendants. With recognition that there are sound reasons for not trying to exhaustively examine the merits of the plaintiff’s claims immediately after removal, courts across the circuits uniformly impose a high burden on the defendant to demonstrate that a non-diverse defendant’s joinder was improper. That burden can only be met if the defendant establishes that the joinder of the diversity-destroying party in the state court action was made without a reasonable basis of proving any liability against that party. By greatly expanding the scope of the fraudulent joinder inquiry, this bill would displace the well-functioning law with wasteful adjudications that district courts are ill-equipped to undertake at the remand stage, burdening the judicial system and raising litigation costs for all parties, especially for plaintiffs on whom this bill imposes the burden of proof. Finally, by requiring that courts resolve merits inquiries that under current law are decided by state courts, the proposed amendments to §1447 raise federalism concerns.
Friday, September 18, 2015
The Judicial Conference approved a new Strategic Plan for the Federal Judiciary on September 17, 2015. If you’ve ever participated in drafting a strategic plan for your law school or other organization, you know the familiar jargon: mission statement, core values, issues, strategies, and goals. They even had an “Ad Hoc Strategic Planning Group.” (Federal judges – they’re just like us!)
As a person who has often been involved in strategic planning, I found it a bit disconcerting to see the Judicial Conference adopting the familiar buzzwords. (I wonder if they had the perennial “what is the darn difference between a strategy and a goal” discussion.)
So here’s the Mission Statement of the federal judiciary:
The United States Courts are an independent, national judiciary providing fair and impartial justice within the jurisdiction conferred by the Constitution and Congress. As an equal branch of government, the federal judiciary preserves and enhances its core values as the courts meet changing national and local needs.
The core values:
Rule of Law: legal predictability, continuity, and coherence; reasoned decisions made through publicly visible processes and based faithfully on the law
Equal Justice: fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with dignity and respect
Judicial Independence: the ability to render justice without fear that decisions may threaten tenure, compensation, or security; sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance and management
Accountability: stringent standards of conduct; self-enforcement of legal and ethical rules; good stewardship of public funds and property; effective and efficient use of resources
Excellence: adherence to the highest jurisprudential and administrative standards; effective recruitment, development and retention of highly competent and diverse judges and staff; commitment to innovative management and administration; availability of sufficient financial and other resources
Service: commitment to the faithful discharge of official duties; allegiance to the Constitution and laws of the United States; dedication to meeting the needs of jurors, court users, and the public in a timely and effective manner
Then there are “seven issues--fundamental policy questions or challenges that are based on an assessment of key trends affecting the judiciary’s mission and core values”:
Issue 1: Providing Justice
Issue 2: The Effective and Efficient Management of Public Resources
Issue 3: The Judiciary Workforce of the Future
Issue 4: Harnessing Technology’s Potential
Issue 5: Enhancing Access to the Judicial Process
Issue 6: The Judiciary’s Relationships with the Other Branches of Government
Issue 7: Enhancing Public Understanding, Trust, and Confidence
Within each issue are strategies (such as “Strategy 1.1. Pursue improvements in the delivery of justice on a nationwide basis”) and goals (such as “Goal 1.1a: Reduce delay through the work of circuit judicial councils, chief judges, Judicial Conference committees and other appropriate entities”).
I did not find (on quick perusal) any specific mention of the Supreme Court or of cameras in the courtroom, despite “Strategy 7.2: Improve the sharing and delivery of information about the judiciary.”
Monday, August 24, 2015
Conference: Magistrate Judges and the Transformation of the Federal Judiciary (Las Vegas, 9/25-9/26)
Here is the announcement:
The UNLV School of Law and the Duke School of Law are hosting a conference Magistrate Judges and the Transformation of the Federal Judiciary on September 25-26 in Las Vegas, NV. This conference may be the first effort to explore the critically important institution of magistrate judges from interdisciplinary, empirical, theoretical, and practical perspectives. This conference features political scientists, legal academics, statisticians, magistrate judges, district court judges, appellate court judges, and officers from the Administrative Office of U.S. Courts. Although the federal administration of justice is the subject of much academic study, the vital system of magistrate judges is often overlooked. Unlike many traditional academic conferences, this conference prioritizes participation by judges: multiple judges are featured on every panel, and every panel will elicit audience (especially judicial) participation in the form of comments and questions.
Academic participants include Christina Boyd (Georgia—Political Science), Tracey George (Vanderbilt), Mitu Gulati (Duke), Nancy King (Vanderbilt), Jack Knight (Duke), David Levi (Duke), Nancy Welsh,(Penn St) and Albert Yoon (Toronto). From UNLV, Dan Hamilton, Ann McGinley, Jeff Stempel and Jean Sternlight are participating. Federal judges who are panelists include Robert Collings (MA), Valerie Cooke (NV), Candy Dale (ID), Cam Ferenbach (NV), Michael Newman (OH), James O’Hara (KS), Philip Pro (NV), Johnnie Rawlinson (NV), and Neil Wake (AZ). Doug Lee and Tom Davis from the Administrative Office of U.S. Courts are also presenting a paper.
The conference begins at noon on Friday, September 25 and ends at noon the following day. Registration information is available here. For additional information you may also contact Thomas Main, firstname.lastname@example.org.
Saturday, August 15, 2015
Two brothers, Seneca and Tari Adams, “endured vicious beatings by Chicago police officers and prolonged detentions in the Cook County Jail” in 2004. The City of Chicago admitted liability for false arrest, excessive force, race discrimination, and malicious prosecution.
The case was tried to a jury on the question of damages. The jury verdict awarded $2.4 million to Seneca (who was savagely beaten and detained in Cook County Jail for 204 days) and $1 million to Tari (who was also beaten and detained in Cook County Jail for 45 days). The district court “remitted” those amounts to $1.17 million for Seneca and $350,000 for Tari. The district court failed, however, to give them the option of a new trial instead of accepting the remittitur.
The Seventh Circuit (in an opinion by Judge Diane Wood, with Judges Ilana Rovner and Theresa Springmann on the panel) held that simply remitting the damages award without offering plaintiffs the option of a new trial was error. Rather than remand back to the district court to allow plaintiffs that choice, however, the Court proceeded to consider whether the district court had abused its discretion in ordering the remittitur in the first place, and held that it had.
Reviewing the outrageous facts, and comparing similar excessive force cases, the Court held that the jury’s verdict was “well within the universe of excessive force and malicious prosecution verdicts.” The case was remanded so that the jury’s verdict could be reinstated.
(In passing, the Court mentioned Professor Suja Thomas’ article, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L.J. 731 (2003). The Court did not reach the argument that remittitur was unconstitutional, but ventured “that it would be bold indeed for a court of appeals to come to such a conclusion, given what the Supreme Court has said on the topic.”)
The case is Adams v. City of Chicago.
Tuesday, August 11, 2015
Brooke Coleman, Seattle University School of Law, has posted on SSRN her recent paper, "The Efficiency Norm," forthcoming in Boston College Law Review.
Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that the efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led them to profoundly shift key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis — one that weighs both the benefits and costs of making litigation cheaper — these now-dominant civil litigation presumptions are dangerous and unwarranted because, among other things, they further de-democratize civil litigation. Finally, the Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.
Monday, July 27, 2015
This month’s essay on the Courts Law section of JOTWELL is Rationing Constitutional Justice by Marin Levy. Marin reviews Aziz Huq’s recent article, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L.J. (forthcoming 2015).
Wednesday, July 1, 2015
In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”
According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.
Monday, June 29, 2015
(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and
(2) Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Saturday, June 27, 2015
By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).
According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.
So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.
Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson.
The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.
Monday, June 8, 2015
(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Saturday, June 6, 2015
Over a year ago, I reported the posting of a draft of my article, The Civil Caseload of the Federal District Courts. It has now been revised and published in The University of Illinois Law Review, Vol. 2015, No. 3. The paper is also posted on SSRN.
This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in the overall volume and duration of federal civil litigation since 1986, suggests a proper methodology for measurement, and shows that the rate of increase of civil filings is less than the growth in the country’s population and the increase in judicial resources in civil cases, noting that any increase must be attributable to the criminal docket. Next, this Article studies the rates at which cases are terminated by various methods, noting today’s primary method is before pretrial with court action due to dispositive motions and judicial management. Third, this Article tracks and explains changes in the “Big Six” categories of civil litigation. Finally, this Article emphasizes the need to look at the government’s caseload statistics to note that the federal civil caseload has been relatively stable for twenty-five years.
Wednesday, June 3, 2015
Two weeks ago, federal district judge Callie Granade certified a class action in the Strawser case and issued a class-wide injunction forbidding enforcement of Alabama’s ban on same-sex marriage. She stayed the injunction, however, until the U.S. Supreme Court issues its ruling in Obergefell v. Hodges, which is expected later this month.
In the meantime, two groups opposed to same-sex marriage have returned to the Alabama Supreme Court, seeking “clarification and reaffirmation” of that court’s earlier mandamus ruling ordering Alabama probate judges not to issue marriage licenses to same-sex couples. Yesterday’s motion asks the Alabama Supreme Court “to enter an order clarifying and reaffirming the continued effectiveness of the Mandamus Order despite entry of the conflicting Strawser Class Injunction.”
Monday, May 18, 2015
1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.
3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Tuesday, May 5, 2015
Yesterday the Supreme Court issued a unanimous decision in Bullard v. Blue Hills Bank. The opinion, authored by Chief Justice Roberts, begins:
Chapter 13 of the Bankruptcy Code affords individuals receiving regular income an opportunity to obtain some relief from their debts while retaining their property. To proceed under Chapter 13, a debtor must propose a plan to use future income to repay a portion (or in the rare case all) of his debts over the next three to five years. If the bankruptcy court confirms the plan and the debtor successfully carries it out, he receives a discharge of his debts according to the plan.
The bankruptcy court may, however, decline to confirm a proposed repayment plan because it is inconsistent with the Code. Although the debtor is usually given an opportunity to submit a revised plan, he may be convinced that the original plan complied with the Code and that the bankruptcy court was wrong to deny confirmation. The question presented is whether such an order denying confirmation is a “final” order that the debtor can immediately appeal. We hold that it is not.
In the opinion, Roberts notes some of the differences between appealability in bankruptcy proceedings and in other kinds of federal litigation:
In ordinary civil litigation, a case in federal district court culminates in a “final decisio[n],” 28 U. S. C. §1291, a ruling “by which a district court disassociates itself from a case,” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995). A party can typically appeal as of right only from that final decision. This rule reflects the conclusion that “[p]ermitting piecemeal, prejudgment appeals . . . undermines ‘efficient judicial administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981)).
The rules are different in bankruptcy. A bankruptcy case involves “an aggregation of individual controversies,” many of which would exist as stand-alone lawsuits but for the bankrupt status of the debtor. 1 Collier on Bankruptcy ¶5.08[b], p. 5–42 (16th ed. 2014). Accordingly, “Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.” Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U. S. 651, 657, n. 3 (2006) (internal quotation marks and emphasis omitted). The current bankruptcy appeals statute reflects this approach: It authorizes appeals as of right not only from final judgments in cases but from “final judgments, orders, and decrees . . . in cases and proceedings.” §158(a).
Nonetheless, a court’s decision to reject a repayment plan but to give the debtor a chance to submit a revised plan does not qualify for an immediate appeal. Roberts explains:
Denial of confirmation with leave to amend, by contrast, changes little. The automatic stay persists. The parties’ rights and obligations remain unsettled. The trustee continues to collect funds from the debtor in anticipation of a different plan’s eventual confirmation. The possibility of discharge lives on. “Final” does not describe this state of affairs. An order denying confirmation does rule out the specific arrangement of relief embodied in a particular plan. But that alone does not make the denial final any more than, say, a car buyer’s declining to pay the sticker price is viewed as a “final” purchasing decision by either the buyer or seller. “It ain’t over till it’s over.”
Wednesday, April 29, 2015
Today the Supreme Court adopted the recent batch of proposed amendments to the Federal Rules of Civil Procedure. Here is the order setting forth the amendments and submitting them to the House and Senate.
Absent congressional action, these amendments will become effective Dec. 1, 2015.
Note that today's order from the Court does not include a "redline" of the new changes or the committee notes that accompany them. Here are the redline and notes that were included in the Standing Committee report:
UPDATE: Valerie N (see comments below) reports that the Court has asked for two changes to the advisory committee notes. The entire package of materials--including the final version of the committee notes--is now available here.
Monday, April 27, 2015
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
The Court granted cert. notwithstanding an invited brief from the Solicitor General arguing against review. That brief explained:
The court of appeals held that respondent had established Article III standing to sue petitioner “for publishing inaccurate personal information about [respondent]” because petitioner allegedly had violated respondent’s “statutory rights” protecting his “personal interests in the handling of his credit information.” Pet. App. 1a, 8a. The court below correctly concluded that the publication of such false information is a cognizable Article III injury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, April 14, 2015
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos entitled Standing (in) for the Government. Sergio reviews Seth Davis’s recent article, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. (forthcoming 2015).
Wednesday, April 1, 2015
Yesterday the Supreme Court decided Armstrong v. Exceptional Child Center, ruling by a 5-4 vote that Medicaid providers could not sue state officials for failing to comply with § 30(A) of the Medicaid Act (also known as the “equal access” provision). Justice Scalia writes the majority opinion, joined in full by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer joins part of Scalia’s opinion to provide the fifth vote, but also authors a separate concurring opinion. Justice Sotomayor writes the dissenting opinion, joined by Justices Kennedy, Ginsburg, and Kagan.
Tuesday, March 31, 2015
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.
This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.
My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.
[Cross-posted at PrawfsBlawg]
Thursday, March 26, 2015
Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract:
In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.
Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.