Lower Federal Courts Research Articles

Administering the National Environmental Policy Act

The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act (NEPA) which, by its terms, casts CEQ as an advisor to the president. President Nixon first ordered CEQ to create “guidelines” for federal agencies discharging their duties under NEPA in 1970. Those guidelines also influenced the courts that first interpreted NEPA in some obvious and some subtle ways. But in 1977, President Carter ordered that CEQ issue rules to bind all agencies, replacing informal guidelines with purportedly binding regulations implementing NEPA. Did that make CEQ NEPA’s “administering” agency? Can presidential action of the sort entitle CEQ’s interpretations of NEPA to Chevron deference? If so, what of the “agencies of the Federal Government” who are charged by the statute in terms with generating its “detailed statements” and pursuing its “national policy”? In practice CEQ’s rules have been regarded by courts and most action agencies as “law,” at least in a sense. Yet the CEQ rules cover only a tiny fraction of NEPA’s domain. They say virtually nothing about the priorities that decision-makers should set, the types of environmental damage we must strive to avoid, or the ways that environmental risks and benefits should be balanced. The Supreme Court has admonished the lower federal courts repeatedly that it is not the courts’ place to opine on any of that, having done so emphatically and often enough that virtually no one contends otherwise. This leaves NEPA’s “substance” virtually untouched by both CEQ’s interpretation(s) and those of reviewing courts. CEQ and its rules are more than a curiosity or some errant departure from prevailing doctrine, though. They demonstrate something fundamental about our president’s authority in the administrative state and perhaps even how our presidents exert their most enduring influences therein. If presidential administrations are to utilize NEPA to its fullest potential in setting the nation’s environmental agenda, they would do well to understand how NEPA has been administered to date.

Animus and Marriage Equality

Before Windsor, there were three unanswered questions about the doctrine of unconstitutional animus: (1) how the Court defined animus; (2) what the Court accepted as evidence of animus; and (3) how the Court understood the relationship between animus and rational basis review. After Windsor, these three questions remain unanswered. Indeed, these precise questions were the object of heated --- and ultimately unresolved --- debate between the majority and dissenting opinions in the case. Thus, with Windsor, the Court declared that animus remains a relevant concept in the Court’s equal protection jurisprudence and confirmed that proving the presence of animus is a viable strategy for winning a marriage equality challenge. And yet the Court failed to clarify the contours of the concept, leaving advocates, as well as lower federal and state courts, without guidance on how to articulate and apply the doctrine.

Good Enough for Government Work: Two Cheers for Content Neutrality

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine - a doctrine subject to a sustained barrage of judicial and academic criticism.Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses of content neutrality, this Article seeks illumination by shifting to a more grounded focus. I compare the 614 reported cases in which the lower federal courts deployed the doctrine between September 2009 and February 2013 with the First Amendment cases decided by the Roberts Court. I analyze what political science and behavioral psychology tell us about the way that the content neutrality doctrine is likely to function in setting the terms of interaction between the private actors and government officials who actually populate and seek guidance from the case law.Unlike the recent Supreme Court docket, contemporary content neutrality cases in the lower courts center on contests between potential “village tyrants” - local officials and street level bureaucrats who will often find it difficult to hold fast to tolerant ideals - and local dissenters who are likely to provoke them. In these struggles, there are important reasons to prefer a strong doctrine of content neutrality to its proposed doctrinal competitors. Content neutrality is important not as a first best rule to assure that the Supreme Court properly implements a theory of the First Amendment, but as a usable norm for the government actors who make decisions before court proceedings commence and for the polity to which those actors answer.Content neutrality frames the terms of engagement between the governed and the governors of the United States in ways that incline the “general spirit of the people and the government” to the protection of rights of free expression. Its flamboyant protection of speech repugnant to a variety of constituencies means that the lived reality of free expression will mobilize support from an array of political factions. Content neutrality is, as the Court maintained in laying the doctrine’s foundations, an important practical element of constitutional architecture that preserves a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”.

Misunderstood, Misconstrued, and Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign Affairs

Lower federal courts often cite the “political question doctrine” when dismissing as nonjusticiable individual rights cases arising in the context of foreign or military affairs, especially since the 1962 case of Baker v. Carr. Similarly, such courts have inappropriately begun citing “special factors” counselling hesitation in refusing to recognize constitutional claims (“Bivens claims”) in similar foreign policy contexts. However, a review of 200 years of history reveals that the Supreme Court has never applied the so-called “political question doctrine” as a true justiciability doctrine to dismiss individual rights claims, even those arising in the context of foreign or military affairs. In fact, the Supreme Court has almost always rejected the “political question doctrine” as a basis to preclude adjudication of individual rights claims, even in the context of foreign or military affairs. Although the Supreme Court has invoked a “political question doctrine” in some cases, a close review of those cases demonstrates that rather than dismissing the cases as “nonjusticiable,” the Court in fact adjudicated the case by finding that either the executive or Congress acted constitutionally within their power or discretion. Lower court, and some scholars, are misreading these Supreme Court cases by citing them in support of dismissal based on the doctrine. The recent post-9/11 Supreme Court cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Bush v. Boumediene further demonstrate that the doctrine does not exist as a nonjusticiability doctrine in individual rights claims (if it exists as such at all), even in those involving foreign and military affairs. In case there remained any doubt, in 2012 case of Zivotofsky v. Clinton, the Supreme Court for all practical purposes sounded the death knell of the application of the “political question doctrine” as a justiciability doctrine with regard to individual rights claims, including those arising in a foreign policy context. Rather than continuing to erroneously dismiss such cases on political question grounds or using “special factors” as nonjusticiable, federal courts should adjudicate the claims by ruling which branch has what power under the Constitution, and whether the branch acted within its powers. This is an important function of the courts, and one vital to legal and political transparency and democracy. Indeed, this is the approach the Supreme Court has consistently taken – even if the Court has not always well-articulated this approach - and which it affirmed in Zivotofsky.

Holdings, Dicta, and the Paradigms of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements.These phenomena cannot be explained by — and, indeed, oftentimes subvert — the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward-looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American legal culture. The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common law constitutionalism and beyond, carry distinctive implications for describing a precedent’s constraining effect. So, too, do various methods of interpretation in the statutory and common law contexts. Ultimately, what should determine the scope of precedent is the set of premises — regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy — that informs a judge’s methodological choices.

Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process

The U.S. Supreme Court's land use jurisprudence establishes that arbitrary land use regulations violate the doctrine of substantive due process. Ultra vires land use regulations – those regulations that exceed the delegated authority of the regulating agency under state law – represent a particular type of arbitrary land use regulation. Lower federal courts that have examined such regulations are split on the question whether they violate substantive due process. This article contrasts two federal Court of Appeals cases in which property owners alleged that a local government agency deprived them of property without due process of law by enforcing an ultra vires land use regulation against them. The article concludes that, consistent with Supreme Court precedent, ultra vires land use regulations must violate the substantive due process rights of the individuals whom they affect.

The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap

Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account. In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification. We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.

The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law

The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law

A Visual Critique of Racism: African American Art from Southern California

A Visual Critique of Racism: African American Art from Southern California

Federal Question Jurisdiction: The Compass, the Maze and the Trap

On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the Court’s most recent decisions. Here I examine the fundamental-principles compass that was developed by the Court in foundational arising-under cases, and synthesized succinctly by Justice Cardozo in Gully v. First Nat. Bank in Meridian. There the Court endorsed a unified jurisdictional theory that focused on the role of the federal issue in the case, asking whether the case was truly about federal law, for if the case was truly about federal law, the exercise of jurisdiction would be inherently consistent with congressional intent to provide a forum for federal question cases.With this fundamental-principles model as my foundation, I then examine more recent arising-under cases and show that, beginning in the 1980s, the compass got lost and was replaced by a maze of increasingly complex doctrinal tests disconnected from logical and well-established jurisdictional principles. Here the focus shifted from the federal nature of the controversy to a policy-driven model weighted heavily toward case-management concerns.Gunn offered the Supreme Court an opportunity to recapture the compass or, at the very least, to provide a comprehensible map that would assist lower federal courts in navigating the judicially created maze. The Court, however, missed that opportunity. Instead, the Court continued along a meandering doctrinal path that diverges from the fundamental principles of jurisdiction and often leads to results inconsistent with the congressionally mandated goal of providing a federal forum for the interpretation and application of the principles of federal law.

A Branch Too Far: Pruning the Abstention Doctrine

For the fourth time in nine years the Supreme Court last Term had the opportunity to review an unrenowned out controversial doctrine of federal court abstention. The Court, however, has again declined to consider expressly the propriety of the doctrine, and has thus given its tacit imprimatur to the principle that federal district courts may, in their discretion, abstain from exercising properly invoked jurisdiction for reasons of judicial economy or “wise judicial administration.” The quiet, unheralded development of this so-called “fourth branch” of abstention doctrine belies its importance. In recent years, as federal court dockets have become more congested, scholars, attorneys, and judicial administrators have proposed a variety of methods to relieve this judicial burden.4 The most notorious recommendation, of course, has been the proposal to eliminate diversity jurisdiction altogether, thereby permitting federal courts to hear only those cases that involve questions of federal law. This controversial proposal periodically reappears in Congress, only to be stalled in endless debate. As docket pressures have increased and Congress has not alleviated the burdens on the federal judiciary, a significant number of federal courts have seized the initiative to pare their dockets by exploiting a previously undeveloped branch of the abstention doctrine. This branch of the doctrine permits a federal court in its discretion to stay or dismiss a justiciable controversy where there is a parallel state court proceeding in which the dispute can be resolved satisfactorily. The Supreme Court has repeatedly affirmed the principle that a district court may refuse to hear a properly instituted case if “exceptional circumstances” exist that warrant federal deference to a concurrent state court adjudication. The Court has indicated its approval of this rule as a palliative means of avoiding duplicative litigation and furthering the interests of judicial economy and sound judicial administration. Invocation of the fourth branch of abstention is usually accompanied by imposing phrases such as “federalism,” “comity,” “avoidance of duplicative litigation,” “judicial efficiency,” “judicial economy,” and “wise judicial administration.” Increasingly crowded federal dockets make it difficult to argue against measures calculated to enhance sound judicial administration. Notwithstanding this meritorious purpose, the fourth branch of abstention is an invidious encroachment on the constitutional and statutory rights of federal litigants. If the courts desire to reduce their dockets, they should persuade Congress to abolish diversity jurisdiction or enact other palliative measures. The Supreme Court is not empowered to sanction the fabrication of an artificial abstention doctrine as a means of docket clearing. Even worse, the Supreme Court sullies its prestige by camouflaging this shabby doctrine with seemingly principled rationales and lofty slogans. The fourth branch of abstention is merely a doctrine of judicial convenience that has no place in American jurisprudence; it is a sickly branch that should be expeditiously pruned from the otherwise healthy abstention tree.The first part of this article briefly surveys the development of the fourth branch of the abstention doctrine and the serious problems posed by its application. Part II discusses the four cases in which the Supreme Court has considered the propriety of the fourth branch. Included in this part is a detailed presentation of the exceptional circumstances test. Part III describes the various interpretations given by the lower federal courts to the exceptional circumstances test and each of its factors. This part also examines a number of factors grafted onto the test by lower federal courts. Finally, part IV argues that regardless of the basis for federal jurisdiction, abstention for reasons of judicial administration is an unacceptable abdication of the federal judicial power.

The Rebirth of Federal Takings Review? The Courts' 'Prudential' Answer to Williamson County's Flawed State Litigation Ripeness Requirement

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings claim. The article reviews the confusion and inequity caused by this “state litigation” ripeness rule, and the Supreme Court’s and lower federal courts’ recent attempts to weaken the rule, so as to allow some takings claimants to litigate in federal court. Williamson County’s state litigation ripeness doctrine requires property owners to litigate for just compensation in state court before they can file a federal takings claim in federal court. But in practice, this rule interacts with other jurisdictional principles, such as federal claim and issue preclusion, in a manner that bars property owners from raising state-court ripened takings claims in federal court. As a result, plaintiffs must file their Fifth Amendment takings claims in state court. Yet, this opens the door for defendants to leverage removal principles and Williamson County to entirely deprive a takings plaintiff of any judicial forum for their case. If a defendant removes a state court takings case to federal court, it prevents the plaintiff from litigating in state court - the only available forum under Williamson County - and brings the removed claim to the federal forum in an unripe state; i.e., prior to full exhaustion of state court litigation. Federal courts often dismiss such removed takings cases, leaving the plaintiff without access to the courts for their Fifth Amendment takings claim. The article explains that these problems arise from a jurisdictional understanding of the state litigation rule and that the Supreme Court has abandoned this view. The Court has transformed the state litigation rule from a strict jurisdictional rule into a discretionary ripeness concept. The article highlights how federal courts are using the new, conception of Williamson County to decline to require state litigation for takings ripeness and defends this approach. It concludes that the courts' application of Williamson County as a discretionary, prudential ripeness doctrine provides them with a basis to spare takings plaintiffs from the worst injustices of the state litigation rule until the Supreme Court finally puts this rule where it belongs: in the waste pile of failed constitutional doctrines.

Walking the Class Action Maze: Toward a More Functional Rule 23

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by fairness to absentees and due process, and (2) the problem of strategic abuse associated with frivolous and weak class action filings. Responding in large part to concerns about fairness, due process, and legitimacy, the Supreme Court has adopted a vague class "cohesion" requirement (Amchem), an interpretive principle tethering the class action to outdated precedent (Ortiz), and a strong indivisibility condition for (b)(2) certification (Wal-Mart). The problem is that none of these limitations is based on a clear understanding of what fairness to absentees requires or how the individual day-in-court right can be reconciled with representative litigation. As a result, the Court's decisions are poorly reasoned and its restrictions inadequately justified. The Advisory Committee should do what it can to correct these deficiencies, and this Article suggests a promising approach. Furthermore, in response to concerns about the strategic filing of frivolous and weak class action suits, federal judges have tightened the standard of proof for certification. But they have done so without general agreement on the normative stakes, and the result is a collection of inconsistent and relatively vague standards. The Advisory Committee should clarify the law in this area by specifying a standard of proof in the text of Rule 23 This Article suggests a useful framework for doing so. Finally, the Article briefly discusses some potential obstacles to Committee action, including the advisability of overruling recent Supreme Court decisions, potential constitutional problems, Rules Enabling Act constraints, transsubstantivity objections, and the ever-present risk of political controversy.

A Winner's Curse?: Promotions from the Lower Federal Courts

A Winner's Curse?: Promotions from the Lower Federal Courts

Shaping the Federal Courts: The Obama Nominees

ObjectivesThe objective of this study is to explore President Obama's nominations to the lower federal courts and compare his patterns to those from George W. Bush and William Jefferson Clinton using a typology established by Goldman in 1997.MethodsUsing data from 1993 to 2012 provided by the American Constitution Society for Law and Policy, we examine a series of cross‐tabulations to make our comparisons.ResultsThe data indicate that President Obama has nominated more women and minorities to the federal bench than either of his two immediate predecessors. Additionally, his nominees possess more moderate ideological preferences than the nominees from either Bush or Clinton.ConclusionsThese results demonstrate that Obama seems more concerned with racial and gender diversity rather than ideological preferences. Therefore, President Obama's claims of pragmatism and his desire to nominate individuals who reflect American society, often doubted by both political supporters and detractors, appear supported by the available data.

The First Amendment And The Ministerial Exemption: Federal Statutory Mandates

<span style="font-family: Times New Roman; font-size: small;"> </span><p style="margin: 0in 0.5in 0pt; text-align: justify; mso-pagination: none;" class="MsoNormal"><span style="color: black; font-size: 10pt; mso-themecolor: text1;"><span style="font-family: Times New Roman;">On January 11, 2012 the United States Supreme Court ruled in Hosanna Tabor Evangelical Lutheran School v. Equal Opportunity Commission, et al.</span></span><a name="_ftnref1" style="mso-footnote-id: ftn1;" href="http://journals.cluteonline.com/index.php/JABR/author/saveSubmit/3#_ftn1"><span class="MsoFootnoteReference"><span style="color: black; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-fareast-theme-font: minor-fareast; mso-themecolor: text1;"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="color: black; font-family: "Times New Roman","serif"; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-theme-font: minor-fareast; mso-themecolor: text1;">[1]</span></span></span></span></span></a><span style="color: black; font-size: 10pt; mso-themecolor: text1;"><span style="font-family: Times New Roman;"> that the First Amendment free exercise of religion clause requires the recognition of a ministerial exception from the application of the discrimination provisions of the federal Americans with Disabilities Act.<span style="mso-spacerun: yes;"> </span>Lower federal courts had long recognized such an exemption in federal anti-discrimination statutes, yet the U.S. Supreme Court had never formally done so.<span style="mso-spacerun: yes;"> </span>The decision of the Court was unanimous, although separate concurring opinions were filed by Justice Thomas and by Justice Alito, who was also joined by Justice Kagan.<span style="mso-spacerun: yes;"> </span>Thus, in its decision, the Court has mandated immunity for religious organizations from the laws that prohibit discrimination, and retaliation in the workplace.<span style="mso-spacerun: yes;"> </span>The Hosanna Tabor decision raises issues of how far such a ministerial exemption extends and to what extent it immunizes religious organizations from liability for other types of statutorily prohibited and tortious conduct.<span style="mso-spacerun: yes;"> </span>There is concern in some sectors that too broad an exemption would immunize religious organizations under numerous neutral, generally applicable laws, such as those governing sexual abuse, unemployment compensation, employer social Security deductions, and sales taxes, all of which have previously been applied to religious organizations.</span></span></p><span style="font-family: Times New Roman; font-size: small;"> </span><div style="mso-element: footnote-list;"><br /><span style="font-family: Times New Roman; font-size: small;"> <hr size="1" /></span><div style="mso-element: footnote;" id="ftn1"><span style="font-family: Times New Roman; font-size: small;"> </span><p style="margin: 0in 0in 0pt; text-align: justify;" class="MsoFootnoteText"><a name="_ftn1" style="mso-footnote-id: ftn1;" href="http://journals.cluteonline.com/index.php/JABR/author/saveSubmit/3#_ftnref1"><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman","serif"; font-size: 10pt; mso-fareast-font-family: "Times New Roman"; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA; mso-bidi-font-size: 12.0pt; mso-fareast-theme-font: minor-fareast;">[1]</span></span></span></span></a><span style="font-family: Times New Roman;"><span style="font-size: x-small;"> </span><span style="font-size: 9pt; mso-bidi-font-size: 12.0pt;">____ U.S. ____.</span><span style="font-size: 11pt; mso-bidi-font-size: 12.0pt;"></span></span></p><span style="font-family: Times New Roman; font-size: small;"> </span></div><span style="font-family: Times New Roman; font-size: small;"> </span></div><span style="font-family: Times New Roman; font-size: small;"> </span>

Rule Creation in a Political Hierarchy

Principal-agent relations are replete in politics; politicians are agents of electorates, bureaucrats are agents of executives, lower courts are agents of upper courts, and much more. Commonly, principals are modeled as the rule-making body and agents as the rule-implementing body. However, principals often delegate the authority to make the rules themselves to their agents. The relationship between the lower federal courts and the Supreme Court is one such example; a considerable portion of the law (rules) is made in the lower federal courts with the Supreme Court serving primarily as the overseer of those lower courts’ decisions. In this article, we develop and test a principal-agent model of law (rule) creation in a judicial hierarchy. The model yields new insights about the relationship among various features of the judicial hierarchy that run against many existing perceptions. For example, we find a non-monotonic relationship between the divergence in upper and lower court preferences over rules and the likelihood of review and reversal by the Supreme Court. The empirical evidence supports these derived relationships. Wider implications for the principal-agent literature are also discussed.

In Defense of the Underused, Much-Abused Student-Authored Recent-Developments Note

With the advent of improved dissemination technology, the time has come for the renaissance of the student-authored recent-developments note — a brief, neutral, detached, critical, intellectual commentary and analysis of a single important case or piece of legislation. Once the staple of student law review writing, they have been discarded in favor of more sophisticated scholarship and as a concession to students’ heavy editing burdens. Legal scholarship is suffering from symptoms that link directly with its absence because students who write less scholarship are less likely to be effective writers and editors. Part II uses the development of student writing at the Harvard Law Review to illustrate the critical, valued role the recent-developments note has historically played. Part III charts the current anemic state of the recent-developments note and discusses two possible causes: the editorial burden created by the increased use of discursive footnotes, and the belief by some that the role of legal reporter, once played by the recent-developments note, is now adequately (if not completely) filled by legal blogs (or blawgs) and legal news services. To test this assumption that blogs are making recent-development notes obsolete, Part III also analyzes the blog traffic of one recent case from the United States Court of Appeals for the Eighth Circuit, U.S. v. Kramer, to demonstrate that because blog traffic tends to be reactionary or limited in its coverage, it does not always adequately address the issues raised by a decision. And if this one sample decision from a federal appeals court does not receive adequate attention, it is even more likely to be true of lower federal court or state court decisions. There is space in our legal discourse for strong student scholarship, which adds breadth and depth to an analysis of an issue, and, in this age of improved dissemination, the notes can even be timely. Reintroducing these notes into the law review will benefit the legal readership, but — as discussed in Part IV — it will also have significant benefit for the students learning the form and substance of legal scholarship, and for the faculty authors who will benefit from more experienced editors. The article ends with a few suggestions for ensuring that recent-developments notes are efficiently produced without significant additional burden on law review staffs, and are timely and effectively offered to readers.

The Confirmation Obstacle Course: Signaling Opposition through Delay

We examine the time required for lower federal court nominees to complete the confirmation process. Using proportional hazards models, we analyze delay at the Judiciary Committee stage and the full Senate vote stage from 1977 to 2010, finding that delay has been used by members of the committee and the full Senate to signal opposition to nominees. Delay at the committee stage has influenced delay on the Senate floor for circuit and district court nominees, at least in the years since Robert Bork’s failed nomination to the U.S. Supreme Court. Our findings indicate that senators pick up on committee delay as a cue in the confirmation process. Examining the distinct stages of the confirmation process provides important new insights into legislative signaling behavior and confirmation politics.

Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor — judicial ideology — our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decisionmaking more generally.