Federal Courts
Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process
Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases
119 Yale L.J. 270 (2009). This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nuanced framework to evaluate deference that considers both degree and form. It identifies two forms of deference: perception deference as an independent decision not to reach an independent conclusion concerning whether and to what extent a threat exists, where the decision is expressed through the adoption of government decisionmakers’ conclusions, and means deference as an independent decision not to reach an independent conclusion concerning the proper means to respond to the perceived threat, where the decision is expressed through the adoption of government decisionmakers’ conclusions. Applying this framework to the Japanese-American cases, this Note concludes the Supreme Court exercised little perception deference and complete means deference, a finding with important implications for four prominent scholarly debates.
When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation
119 Yale L.J. 86 (2009). In many cases, municipal attorneys defend both a municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated with these conflicts of interest. The Note categorizes and describes the strengths and shortcomings of existing approaches to addressing these conflicts. Finally, it proposes a hybrid approach that may better address conflicts of interest in municipal dual representation.
The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs
118 Yale L.J. 2 (2008). This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated.
Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals
116 Yale L.J. 1625 (2007)
The Constitutional Foundations of Chenery
116 Yale L.J. 952 (2007) The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency’s action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency’s justification, Chenery’s settled rule enforces an aspect of the nondelegation doctrine that has been obscured by more recent decisions that understand nondelegation as involving only a demand for legislative standards, or “intelligible principles.” The neglected arm of the nondelegation doctrine, which Chenery enforces, holds that a delegation is constitutionally valid only if it requires the agency exercising the delegated authority to state the grounds for its invocation of power under the statute. Chenery’s enforcement of this norm polices the political accountability of agency action by ensuring that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency’s actions, and it promotes the regularity and rationality of agency decision-making by enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decision-making to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery in the enforcement of the nondelegation doctrine, this account also suggests that the President’s own exercise of statutory power is not immune from Chenery’s demands.
Chevron as a Voting Rule
116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections. Read responses to Chevron as a Voting Rule in The Yale Law Journal Pocket Part: Richard J. Pierce, Jr., Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 248 (2007), http://thepocketpart.org/2007/01/25/pierce.html. Matthew C. Stephenson, The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 238 (2007), http://thepocketpart.org/2007/01/25/stephenson.html.
The Corporate Origins of Judicial Review
116 Yale L.J. 502 (2006) This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution--what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.
Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism
116 Yale L.J. 139 (2006)
How To Remove a Federal Judge
116 Yale L.J. 72 (2006) Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, and the revolutionary state constitutions, the Article demonstrates that at the Founding, good-behavior tenure and impeachment had only the most tenuous of relationships. Good-behavior tenure was forfeitable upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Contrary to what many might suppose, judges were not the only ones who could be granted good-behavior tenure. Anything that might be held--land, licenses, employment, etc.--could be granted during good behavior, and private parties could grant good-behavior tenure to other private individuals. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good-behavior tenure had forfeited her tenure by reason of misbehavior. Whether a landholder, employee, or government officer with good-behavior tenure had misbehaved would be determined in the ordinary courts of law. Moreover, the vast majority of state constitutions did not equate good-behavior tenure with impeachment either. To the contrary, many distinguished them explicitly. Taken together, these propositions devastate the conventional conflation of good-behavior tenure with impeachment. More importantly, they indicate that the original Constitution did not render impeachment the only possible means of removing federal judges with good-behavior tenure. Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law. Read Professor Prakash and Professor Smith's accompanying Pocket Part essay, Removing Federal Judges Without Impeachment.