Controlling Precident: Congressional Regulation of Judicial Decisionmaking

Abstract

Professor Michael Stokes Paulsen has recently urged enactment of a congressional statute that would limit the judicial use of precedent in constitutional cases. Although I share Professor Paulsen's general views on precedent, his proposed statute is unconstitutional. Congress does not have power to regulate by statute the decisionmaking processes of federal courts, even when those decisionmaking processes are themselves unconstitutional. Congress' sole remedy is impeachment and removal of judges who improperly decide cases. This assessment of congressional power calls into question many familiar practices, such as statutes regulating scope of review, statutes prescribing rules of evidence for courts, and statutes regulating judicial remedies.