Scholarship

Calabrese on Making Law While Denying Mandamus

Kylie G. Calabrese chronicles a recent power grab by the Fifth Circuit—issuing binding precedent while denying mandamus—and the possible reasons behind it.

June 12, 2020

By Bryan Lammon

Kylie G. Calabrese has published a note in the Baylor Law Review titled Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan. Calabrese chronicles—and criticizes—last year’s Fifth Circuit decision in In re JP Morgan Chase & Co., in which the panel denied mandamus yet purported to issue a binding holding on the underlying legal issues. She explains how this differed from past instances of appellate courts’ denying mandamus while “nudging” district courts to take another look at an issue. (We saw an example of that last year when the D.C. Circuit denied mandamus but said the district court was wrong in refusing to certify an issue for immediate appeal under 28 U.S.C. § 1292(b).) She also shows how inappropriate this decision was in its disregard for the district court and the final-judgment rule. And she explores what might have motivated the author of the JP Morgan opinion—Judge Jerry Smith—to take such an unprecedented step.

The note is a great read—interesting, well written, and short. Check it out at the link below.

Kylie G. Calabrese, Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan, 72 Baylor Law Review 165 (2020), available at the Baylor Law Review.

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