Federal Judicial Review Research Articles

Lacking Legislative Experience: The Impact of Changing Justice Backgrounds on Judicial Review

Abstract Though once commonplace, presidents no longer nominate individuals with legislative experience to the U.S. Supreme Court. What difference does this shift make? Drawing on theories that connect judicial background characteristics to decision-making, I test whether legislative background impacts federal judicial review. Using nonparametric matching and almost 150 years of judicial review decisions, I find that, while such experience decreases the likelihood of striking down a law, the effect is small. By contrast, partisanship has a much stronger impact, with justices more likely to strike down laws when the enacting Congressional majority is a different party from their appointing president.

Immigration Adjudication: The Missing “Rule of Law”

The United States spends more than $19 billion each year on border and immigration enforcement.1 The Obama administration removed more people in eight years than the last four administrations combined.2 Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent3 of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system. While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system. DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

Does Commerce Clause Review have Perverse Effects?

There is a crucial empirical assumption that pervades the debate about federal judicial review of federal statutes under the affirmative Commerce Clause. The assumption, indulged by many different camps in the debate, is that Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states. This essay argues that, on equally plausible empirical assumptions, Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization have chosen a course of action with potentially perverse effects. The essay concludes by examining how the possibility of perverse effects should affect the decisional calculus of judges in each of the various camps.

The Bush and Obama Administrations' Invocation of the State Secret Privilege in National Security Litigation: A Proposal for Robust Federal Judicial Review

The Justice Department under the Bush Administration repeatedly invoked the State Secrets Privilege (SSP) in high-profile national security litigation cases challenging many of the controversial practices instituted in response to the September 11th, 2001 terrorist attacks. Furthermore, in all national security-related litigation still pending from the Bush Administration era and in newly developed cases, the Obama Administration has, to the dismay of many, declined to reverse this policy. From litigation challenging the practice of extraordinary rendition to the issue of wiretapping US citizens without judicial approval, the Obama Justice Department has continued to invoke the SSP, concluding that any legal challenges against national security-related programs would necessitate disclosure of high-secret discovery materials and could potentially harm American national security. This paper critiques some of the arguments advanced for how to reform the privilege, such as the State Secrets Reform Act, S. 2533, “A bill to enact a safe, fair, and responsible state secrets privilege Act” that would significantly seek to constrain presidential authority in this area. I argue against congressional reform, and instead assert that the proper basis for reformation should come from the judiciary itself. The conventional default deference given to the Executive Branch should be dramatically curtailed in favor of a more robust procedural guarantee of judicial review. This argument stands against proposed reform from Congress, and instead focuses on ways in which federal judges can better police presidential assertions of privileged information in national security litigation.

Federalism, Fig Leaves, and the Games Lawyers Play

This article, part of a symposium on the New Federalism movement, asks two questions about the movement and its opponents. The first is whether the disagreement is about principle – finding the appropriate balance between national and state powers, or just about politics – using the term federalism, which suggests abstract principle largely to hide partisan support of states' rights. It argues that it is politics, and that supporters of states' rights prefer New Federalism to States' Rights because of the latter phrase's association with support for racial segregation. The second question concerns consistency. The article argues that New Federalists depart from text and history in supporting state impunity from federal judicial review, focusing on the sovereign immunity doctrine. This appears to be at odds with their insistence that text and history should govern interpretations of national powers and justify rejection of precedents broadly construing the constitution. The article ends by suggesting renewed emphasis on cooperative federalism – joint federal/state efforts to achieve national and regional objectives.

DEMOCRATIC OBJECTIONS TO STRUCTURAL JUDICIAL REVIEW AND THE JUDICIAL ROLE IN CONSTITUTIONAL LAW

This article revisits my argument that structural judicial review – judicial review of those provisions of a constitution that establish the basic structure of government and divide power between the constituent parts of a federation – is vulnerable to the objection from democracy and defends that claim against arguments made by Jeffrey Goldsworthy and others. First, I deny that the democratic objection to judicial review can, by virtue of its commitment to respect for rights, be wielded only against rights review: on the contrary, I argue, it applies where judges have the power to interpret and enforce constitutional provisions or principles that are uncertain in their scope and which therefore require judges to make evaluative judgments in the face of reasonable disagreement. Structural judicial review routinely involves judges’ making, or reaffirming, choices of just this kind. Second, I deny that federal judicial review is immune from the objection either because it constitutes only a weak form of judicial review or because judicial review is a necessary attendant of federalism: on the contrary, federal judicial review requires judges to choose between contested conceptions of federalism in a manner not susceptible to legislative revision. In addition, I argue, there are institutional structures that would allow for the resolution of federal disputes without begging the question at the heart of federalism. Finally, I deny that judicial review of legislative procedures, of requirements establishing an independent judiciary, or of federal anti-discrimination norms (categories identified by Goldsworthy) create practically significant exceptions to my claim.

Pragmatic Federalism: Australian Federalism from Hawke to Howard

The article explores the nature of Australian federalism by examining four major themes in the period from Hawke to Howard. The investigation of these themes – Australian conceptions of federalism; the role of party in shaping federalism; the way problems and politics have influenced policy‐making and thereby federalism; and the nature of federal judicial review – suggests that Australian federalism can most accurately be characterised as pragmatic. It appears as a federalism shaped by pressing problems, specific policy agendas and the prevailing political dynamic, rather than by overarching conceptions of federalism derived from political theory or articulated in party ideology. This pragmatic federalism explains important aspects of Australian federalism, especially the trend towards centralisation of authority.

Ideological Extremism, Public Preferences, and Federal Judicial Review in the U.S. Supreme Court

With the recent anniversary of Marbury vs. Madison, our national fixation with judicial review celebrated its 200th birthday. The roots of that obsession are straightforward: the practice of judicial review - by which often unelected and largely politically unaccountable courts review and decide upon the constitutionality of duly-enacted state and federal statutes - appears on its face to be patently undemocratic, a state of affairs exacerbated by courts' seemingly frequent adventures into striking down laws which are longstanding, widely popular, or (occasionally) both. As with many obsessions, however, this one has often produced more heat than light, particularly when it takes on its more partisan forms. In this paper, I hope to begin to change that, by offering an overview of the practice of judicial review over the past five decades. I focus on the most prominent example of judicial review: constitutional review of federal laws by the U.S. Supreme Court. I do so for reasons of tractability, and in doing so, I don't wish to minimize the significance of judicial review in other contexts, including the uniquely problematic questions surrounding federal judicial review of state statutes. Rather, my hope is to point out how little in fact we know, empirically speaking, about the operation of judicial review at the level of the U.S. Supreme Court, and in doing so to examine some of the common understandings (and potential misunderstandings) about its occurrence. More important, my goal is to provide a more solid empirical footing for the ongoing (and increasingly heated) ideological debates about the role of judges and courts - particularly the U.S. Supreme Court - in shaping American society and law. It is also important to recognize at the outset what I am not endeavoring to accomplish here. I offer neither a theoretical critique nor a defense of judicial review per se; that is well-trod ground. Nor am I interested in waging an attack on the use of judicial review by any particular Court, past or present; the fact that my analysis encompasses a period from the earliest days of the Warren Court to the the Rehnquist Court's zenith in the late 1990s serves only to broaden the generality of my empirical conclusions. Perhaps most important, the paper is not an attempt to wrestle - at least, not directly - with the counter-majoritarian difficulty (cf. Friedman 2002). At the same time, the work here should illuminate debates in all these areas, particularly those over the existence of an intrinsic political bias to the use of judicial review that has been suggested by many scholars and pundits.

You Can Check Out But You Can Never Leave: The Supreme Court Revolutionizes Federal Takings Law by Banishing the San Remo Hotel and Many Other (But Not All) Takings Claimants to State Courts Under the Guise of the Full Faith and Credit Act

On June 20, 2005, the United States Supreme Court issued its decision in San Remo Hotel v. City and County of San Francisco, holding that property owners with claims arising under the Fifth Amendment could not obtain federal court review after litigating in state court in compliance with the ripeness requirements of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. The case presented the specific question of whether federal takings claimants could invoke an exception to claim and issue preclusion doctrine under England v. Lousiana Medical Board Examiners based on the fact that Williamson County forced them to involuntarily litigate in state court. The majority decision in San Remo held that takings claimants had no right to a preclusion exception or to federal judicial review, approvingly concluding that the interaction of Williamson County and preclusion will permanently relegate many claims to state courts. In so doing, the majority ignored Williamson County's ripeness premises and its apparent intent to allow federal takings claims ripened by state law litigation in federal court. This article reviews the San Remo decision, criticizing the majority's narrow interpretation of the England preclusion exception and its result in banishing takings claims to state courts. The article then explores the Williamson County ripeness requirement driving the majority result and condemns the majority decision for failing to explicitly address Williamson County's promise to allow ripe federal takings claims in federal court. The article considers whether San Remo's closed the federal courthouse door to takings claims seeking non-compensatory relief and concludes by urging the Court to overrule Williamson County's state litigation requirement.

The Rule of Law: Mexico's Approach to Expropriation Disputes in the Face of Investment Globalization

A new constitutional design is emerging in Mexico to address investment and expropriation disputes. Assurance of the rule of law, understood as independent legal process to resolve disputes, is a key element. Although the rule of law assumed growing importance as Mexico's historical expropriations progressed, questions persisted as to its effective application. Mexico's opening in the 1990's to global competition for investment demanded a greater basis for trust in such application. Mexico accordingly provided by treaty to defer investment and expropriation disputes with treaty country investors to binding international arbitration. To address rule of law concerns more broadly, Mexico in 1994 reformed its Constitution to incease its federal judiciary's independence. More recently, federal judicial review benefits from the Constitution's increased rigidity consequent to the fading of single party rule. Recent cases, including the resolution of the Metalclad international arbitration, the Supreme Court's declaration of the constitutional position of treaties relative to legislation, and the Supreme Court's resolution of a constitutional dispute between Congress and the President with implications for private investment in the electric sector, delineate the emerging design and associated, innovative judicial doctrine. Keywords: Mexico, rule of law, expropriation, investment, globalization, investment globalization, Metalclad, NAFTA, Chapter 11, NAFTA Chapter 11, trade, trade dispute, North American Free Trade Agreement, arbitration, nationalization, international arbitration, judicial review, amparo, monism, dualism, supranational, electricity, electric sector, utility, utilities, railroad, railroads, bank, banking, oil, ecclesiastical, land reform, agricultural, constitutional, rigid, flexible, constitution, constitutional review, banks, international law, public international law, Latin America, Latin America constitutional law, human rights, American Convention on Human Rights, municipal law, domestic law, Mexican constitutional law, Latin American constitutional law, industrial organization, law and development

At Law: Managed Care, Conflicts of Interest, and Quality

The Supreme Court case of Pegram v. Herdrich,[1] decided in June 2000, refocused the debate on the nature of the managed care system in America. The legal issue before the Court was whether beneficiaries of an employer-sponsored health care plan can sue the plan on the theory that, in failing to provide adequate health care to its members, the plan breached its fiduciary duty under the Employee Retirement Income Security Act (ERISA). The facts of Pegram highlight the extent to which managed care organizations (MCOs) provide economic incentives for physicians to provide less care. In particular, physicians may receive greater compensation for fewer hospitalizations, diagnostic tests, and referrals to specialists. The plaintiff in Pegram suffered a ruptured appendix as a result of her physician's decision that an inflamed mass in her abdomen didn't constitute an emergency. Her physician's medical group was structured to reward doctors for cutting costs by passing on the funds saved from such procedures in the form of a year-end bonus. The plaintiff argued that this plan created a built-in conflict of interest and that the financial incentives to withhold care violated ERISA. The Supreme Court held that no federal cause of action exists under ERISA on the theory that the MCO, through its treating physician, limited medical treatment to the employee's detriment in order to increase physician bonuses for reducing costs. In particular, the Court found that mixed medical treatment and health plan eligibility decisions made by MCOs acting through their physicians are not fiduciary decisions under ERISA. The result is that MCOs are now virtually immune from federal judicial review even if they provide the most flagrant economic incentives not to provide quality care. I am an advocate for properly run managed care because cost is an important factor in the health care system. Cost-consciousness can enhance the population's health by eliminating unnecessary care and making more resources available to those in need. Reducing medical costs reduces premiums, thereby increasing access to health care. However, there are powerful ethical reasons for requiring that MCOs, like other businesses, be held legally accountable for their actions.[2] Accordingly, there should be a judicial process to sort out which economic incentives create conflicts of interest that undermine the provision of quality medical services. As the Court itself recognized, Dr. Pegrams decision to wait before getting an ultrasound, and her insistence that the ultrasound be done at a distant facility owned by the HMO, reflected an interest in limiting the HMO's expenses, which blinded her to the need for immediate diagnosis and While cost-consciousness in managed care is important, there is a line beyond which MCOs cannot go without causing harm, or at least the perception of harm. Consider two problems that can result from a conflict of interest. The first involves treatment decisions by physicians and the second involves physician advice. MCOs provide structural incentives to deny care both at the point of delivery (that is, treatment decisions) and at the point of entry (coverage decisions). As explained above, physicians' compensation may be substantially increased in exchange for providing less treatment. Administrators' determinations of coverage for medically necessary treatment may be made with an eye toward their own compensation. Those directly responsible for determining coverage and recommending treatment have a clear economic incentive to do less. The problem is exacerbated in health care plans owned and operated by physicians. In such cases, the physicians own the health care plan, treat patients, decide whether to pay claims, and receive year-end bonuses based on cost savings. The decisionmaking process in these kinds of managed care systems is thoroughly entangled. All parties agree that such compensation arrangements provide an incentive for cost-conscious behavior and create conflicts of interest. …

Federal Judicial Review of State Welfare Practices

Federal Judicial Review of State Welfare Practices

Administrative Tribunals: Workmen's Compensation: Scope of Federal Judicial Review under Longshoremen's and Harbor Workers' Compensation Act

Administrative Tribunals: Workmen's Compensation: Scope of Federal Judicial Review under Longshoremen's and Harbor Workers' Compensation Act

Administrative Law. Workmen's Compensation. Scope of Federal Judicial Review under Longshoremen's and Harbor Worker's Act

Administrative Law. Workmen's Compensation. Scope of Federal Judicial Review under Longshoremen's and Harbor Worker's Act