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Despite evidence that racial diversification has increased support for the judiciary, political scientists know little about the heterogeneous effects of diversification across different population segments. Previous research illustrates that including Black judges increases judicial legitimacy among the Black population, but it decreases the legitimacy of the courts among the White population. We expand on this knowledge by examining the impact of adding Latinos to the bench. Our survey experiment compares White respondents' perception of the courts based on differing levels of Latino representation in the ruling panel. Does descriptive representation in the racialized issue area of immigration signal fairness and legitimacy to White respondents? Or does the inclusion of Latino jurists in immigration cases trigger racial animosity and decreasing support for the courts? We find that when the court rules against the White respondent's preference, they tend to penalize all-White judicial panels that rule against the perceived interest of Latinos. Additionally, we find that when presented with a Latino majority panel, White respondents who disagree with the ruling are more likely to punish the anti-Latino decisions as their levels of group consciousness increase. Ultimately, our findings illustrate how judicial diversity may affect the countermajoritarian capacity of the judiciary. [ABSTRACT FROM AUTHOR]

Since the 2020 elections, debate about the Supreme Court's relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court's effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation of specific acts or moments, not a complex system made up of electoral institutions, the rule of law, and parties disposed to accept electoral loss. This Article offers a new analysis of the relation between judicial power and the quality of American democracy. This account is nested in a wider, systemic perspective accounting for both political and economic forces. Drawing on recent empirical work in political science and economics, this Article situates the Roberts Court at the nexus of three intersecting "long crises" of American democracy. The first is the democratic deficit embedded in the Constitution's original 1787 design. The second is a sharp increase in wealth inequality since the 1970s. The third is the more recent reemergence of a sometimes violent "white identity politics" as a rift starkly bisecting the electorate. The fragility of American democracy arises from an untimely confluence of these three forces, which until now have been unfolding along separate tracks at different tempos. The Roberts Court arbitrages between these three counterdemocratic dynamics in ways that impose considerable pressure on the inclusive norms and representative mechanisms through which democracy works. Four lines of precedent merit attention in understanding the convergence of the "long" crises of democracy. These (1) guarantee economic capital, but not associations, a political return; (2) gerrymander civil society by rewarding hierarchical, but not egalitarian, mobilization; (3) facilitate a pernicious form of white identity politics; and (4) undermine electoral and nonelectoral foundations of democratic rotation. Through these lines of jurisprudence, economic, social, or cultural capital is parlayed into disproportionate political power. This doctrine hence entrenches such power into a form of durable incumbency. These decisions, in other words, "encase" extant distributions of economic and sociocultural power from democratic challenge. Drawing out these elements, this Article maps out the "counterdemocratic difficulty" of judicial review as presently employed. [ABSTRACT FROM AUTHOR]

This Note focuses on the power of the federal judiciary to hold litigants in contempt of court. In particular, this Note analyzes whether the contempt power of the federal judiciary stems from an inherent grant of power in the Constitution or whether it is derived purely from acts of Congress. The extent to which Congress can limit judges’ power to punish contempt depends on whether judges have an inherent power to punish contempt. Because judges have used the power to punish in ways that abridge individual liberties and civil rights, it is imperative that Congress be aware of whether it can constitutionally limit judicial conduct vis-a-vis contempt. Part I of this Note outlines what judges and scholars have written about an inherent judicial contempt power. Part II of this Note explores whether the drafters and ratifiers of the Constitution intended to vest the judiciary with an inherent contempt power. In doing so, this Note examines the most important sources from the Founding Era. Those sources include texts from pre-revolutionary British legal practice, American colonial practice, revolutionary state practice, the ratification debates, and the actions of the Founders immediately following the ratification of the Constitution. By tracing the history of the contempt power from British practice all the way to constitutional ratification, this Note provides a comprehensive overview of how the thoughts of the framers changed over time and what the framers finally intended with regard to contempt when they drafted the Constitution. This Note argues that the framers did not intend to create an inherent judicial contempt power and that judges’ contempt power is therefore under Congress’s control. [ABSTRACT FROM AUTHOR]

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference--under which courts defer to reasonable agency statutory interpretations--violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do--situates challenges to Chevron within the broad landscape of the Court's current Article III jurisprudence. A thorough study of Article III jurisprudence hobbles these blunderbuss Article III challenges to Chevron but leaves room for narrow attacks. Derived from the plurality in Northern Pipeline v. Marathon Pipe Line Co., a fourquadrant matrix informs Congress's power to limit Article III adjudication or review. The quadrants concern public and private rights, each subdivided by claims Congress created and did not create. Chevron does not apply to the most contentious and perhaps most unsettled quadrant--private rights that Congress did not create--and it most often applies in the quadrant in which Congress almost certainly can limit de novo judicial review--public rights that Congress creates. That leaves two other quadrants--public rights that Congress did not create (including, for traditional reasons, criminal law) and congressionally created private rights--where Chevron sometimes applies. Chevron's application in these latter two quadrants should give pause because the Court has more jealously guarded Article III adjudication there from congressional interference than with public rights that Congress created. Yet even within these two quadrants, other strands of Article III doctrine suggest that Congress has some space to limit de novo judicial review. By considering the full Article III landscape, this Article demonstrates the folly of a wholesale attack on Chevron and its destabilizing effects. Its critics should instead focus their efforts on discrete skirmishes. [ABSTRACT FROM AUTHOR]

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the importance of injunctions, courts have applied an astonishingly wide range of contradictory approaches to interpreting them. They have likewise disagreed over whether appellate courts should defer to trial courts' interpretations or instead review those interpretations de novo. Virtually no scholarship has been written on these topics. This Article proposes that courts apply a modified textualist approach to injunctions. Under this scheme, courts would generally interpret injunctions according to the ordinary meaning of their language. When a provision in an injunction quotes or incorporates by reference an extrinsic legal authority, such as a statute or contract, however, courts would interpret that provision according to the methodology they would ordinarily apply to that extrinsic authority. This proposed approach ensures that injunctions provide regulated parties with adequate notice of the conduct proscribed, curtails judicial abuses of power, and aligns tightly with the procedural rules that govern injunctions in both federal and state courts. This Article further proposes that appellate courts review trial courts' interpretations of injunctions de novo. Independent appellate review naturally aligns with the textualist goal of implementing the best reading of an injunction, promotes principles of notice, and prevents government overreach. [ABSTRACT FROM AUTHOR]

When using a judicial tool known as the rational basis test, courts tiphold a federal or state statute as constitutional so long as the statute rationally relates to a legitimate government interest. In this Article, I contribute a new theory to a growing body of scholarship questioning the validity of the rational basis test. I argue that the test violates the structural separation of powers and the Supremacy Clause of the U.S. Constitution. Article III of the Constitution vests federal courts with the "judicial power." This power entails applying law to decide particular disputes; interpreting the law in order to apply it; and, when faced with multiple conflicting sources of law, applying higher-order law and rendering lowerorder law void or unenforceable. On that last point, the Supremacy Clause provides that the Constitution prevails over contrary federal and state statutes. I argue that when they deploy the rational basis test in cases challenging statutes, courts abdicate part of theirjudicial power and duty. Instead of fully exercising the judicial power to ascertain the best, fairest, and correct interpretation of the constitutional provision at issue, they merely set a zone of deference, within which all rational interpretations reside. The abdicated judicial power is effectively transferred to Congress or the state legislature (as the case may be), which then exercises the reninant judicial power-much like how Clunwon deference results in transfer of judicial power to the executive branch. When used to review a federal statute, this framework violates the separation of powers. And when used to review any statute, it subverts the Supremacy Clause's established legal hierarchy by elevating the status of lower-order statutes and illegitimately demoting the Constitution. [ABSTRACT FROM AUTHOR]

The article examines the differences between the federal and Ohio constitutions in how they allocate judicial power, and explains why the differences render Civil Rule 53(C)(2) constitutionally defective. It discusses the constitutional effect of litigants' consent under the Federal Magistrate Act, and Supreme Court decisions that have accepted litigants' consent as foundation for various kinds of non-Article II judges and judicial officers to exercise the judicial power of the country.

Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of the Article III courts, and both should be deemed to violate the separation of powers doctrine. Unfortunately, however, the Supreme Court's institutional response to this troubling new trend of congressional reassignment of core judicial business has been (at best) halting, tepid, and weak. In a trio of recent decisions, the Justices have given Congress a green light to direct merits results in pending litigation before the Article III courts ( Patchak v. Zinke and Bank Markazi v. Peterson) and also blessed giving disgruntled litigants the unfettered right to remove pending judicial business from an Article III court to an Article II agency (Oil States Energy Services v. Greene's Energy Group). These three decisions reflect a regrettable return to functionalist analysis in separation of powers disputes involving threats to the structural integrity and independence of the Article III courts. Simply put, vesting the "judicial power" in the federal courts means that judges, not members of Congress, must decide how to interpret and apply the law. This is, after all, the central holding of Marbury v. Madison. Under well-settled separation of powers principles, Congress should not be permitted to aggrandize itself by usurping the decisional authority of the Article III courts. Nor should Congress be empowered to render ongoing federal court proceedings entirely advisory by vesting a litigant who fears an adverse decision with the unilateral power to force a remand of a pending lawsuit to a potentially more sympathetic federal administrative agency. Alexander Hamilton, writing in The Federalist Papers, presciently observed that the judiciary constitutes the least dangerous branch of the federal government. If this is so, it also means that the judiciary is the weakest of the three branches. Separation of powers doctrine and practice must take account of this important structural reality. Vindicating the Madisonian system of checks and balances requires that congressional case snatching, in all of its forms and manifestations, must be categorically resisted and rejected. [ABSTRACT FROM AUTHOR]

The creation of a specialized, "problem-solving" court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively -- at least according to their many proponents, who celebrate them as an example of a successful "evidence-based," data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist? This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement. It contends problem-solving courts do effectively address a problem -- it is just not the one we think. It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power. Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight. Together, these new insights help explain why the problem-solving court model endures. They also reveal a new problem with the model itself -- its entrenchment creates resistance to alternatives that might truly reform or transform the system. [ABSTRACT FROM AUTHOR]

Article III confers the judicial power of the United States over controversies between "citizens" of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word "citizen" referred only to natural persons and therefore that corporations cannot be considered "citizens" within the original public meaning of Article III. As a consequence, insofar as Congress purports to confer constitutional citizenship on corporations, Section 1332(c) is unconstitutional from an originalist perspective. [ABSTRACT FROM AUTHOR]

This Essay considers a popular, deceptively simple argument against the lawfulness of Chevron. As it explains, the argument appears to trade on an ambiguity in the term "ambiguity"--and does so in a way that reveals a mismatch between Chevron criticism and the larger jurisprudence of Chevron critics. [ABSTRACT FROM AUTHOR]

Arguably the most influential power the U.S. Supreme Court has is the power to choose which cases to decide. This power allows the nation's only unelected branch of government to choose either to weigh in on key political controversies or avoid them completely. Here, I take one of the first case-level looks at the role of public opinion in the Court's agenda-setting process. I argue justices vote to hear cases when they are likely to agree with public opinion on the outcome and eschew cases when they are out of step with the American people. However, the effect of public opinion depends on the political environment, especially on the level of public support the Court enjoys, the salience of the issue, and the case's legal importance. [ABSTRACT FROM AUTHOR]

The article tackles the public dialogue on the protection of individual rights under the U.S. Constitution. Topics discussed are judicial review and power of the U.S. Supreme Court's to issue final interpretations on constitutional questions, rights of African Americans, women's right following the Civil War, empowerment of the Congress to regulate commerce with foreign nations and with the Indian Tribes, privacy rights and First Amendment issues involving obscenity, and religious liberty.

American courts routinely make law. They create new rules of contract, invent new torts, fill gaps in some statutes, and devise equitable exceptions to others. This is the daily business of our courts, and it is not controversial. But it should be. When a court makes law, it replaces the law that governed the beginning of a case with a different law at the end. This retroactively applies new law to the parties and denies them due process. It also creates case law that will govern people who were not parties to the case. This is a usurpation of legislative power rather than an exercise of judicial power. In both its retrospective and prospective operation, then, judicial lawmaking is unconstitutional. But American judges act as though their power to make law has nothing to do with the Constitution. They appear to assume that their lawmaking authority is inherent, a prerogative inherited from English judges through the common law. On the whole, however, this assumption is incorrect. The federal government never received the common law. And most states are descendants of Spain or France, not England, so their judges could not have inherited the power of English judges. American judges were granted power by constitutions that separate judicial and legislative powers. Not only is judicial lawmaking unconstitutional, it is also bad policy. Case law is extremely difficult to find, use, and influence, yet it governs the daily life of almost everyone in America. This is a colossal access-to-justice problem. And the judicial habit of rewriting the laws of contract, or adding statutes of limitations to statutes that have none, has encouraged judges to rewrite constitutions, too. It is to blame for Roe v. Wade. Therefore, courts should carefully consider whether they have the power to make law, and they could refer to this article as an example of the kind of analysis they might use. The article examines the legal history of Texas in detail, paying particular attention to what the sources of Texas law say about courts and power. It concludes that Texas judges have no power to make law through judicial decisions. I f judges in other states undertake a similar analysis, they will likely conclude that they, too, have no lawmaking power. [ABSTRACT FROM AUTHOR]

This contribution to a conference celebrating Andrew Coan's Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision- Making (Harvard Univ. Press, 2019) makes three primary points. First, I explain why the Supreme Court's flawed reasoning in INS v. Chadha supports Coan's judicial capacity theory of Supreme Court decision-making. Second, 1 show why judicial capacity concerns do not support the Supreme Court's decision in Rucho v. Common Cause to treat the constitutionality of partisan gerrymandering as a nonjusticiable political question. The Court could and should have announced a bright line rule against any partisan calculation in districting decision-making, and let lower courts adjudicate the pure question of fact that such a rule would raise. Third, I argue that the Court should have identified a nonjusticiable political question not in Rucho, but, as other recent scholarship has suggested, in Shelby County v. Holder. Congress's provision for preclearance in the Voting Rights Act serves not only to uphold the promises of the Fourteenth and Fifteenth Amendments, but also to fulfill the national government's constitutional duty to guarantee every state in the Union a republican form of government. The Court has long held that it will not second-guess the judgment of the elected branches about what republican form requires. [ABSTRACT FROM AUTHOR]

This essay focuses on extra-judicial capacity which is the demand side of judicial decision-making. Topics covered include the importance of extra-judicial capacity to U.S. constitutional law, which extends far beyond its connection to the judicial capacity model (JCM) proposed by Andrew Coan in his book "Rationing the Constitution," the two points to highlight the import of extra-judicial capacity, and extra-judicial capacity as a contingent feature of constitutionalism.

Andrew Coan's judicial capacity model explains many things about the pattern of U.S. Supreme Court opinions. Among other things, it perhaps inadvertently explains why the Court makes such wretched decisions about state and local government, particularly in connection with regulatory takings claims. As Coan explains, the Court defines these small-scale regulatory issues as "normal," not requiring anything more than sporadic intervention. But because it can dodge these issues, the Court never becomes familiar with them except in the most superficial way and has little incentive to come up with sensible solutions. Instead it episodically creates off-the-cuff categories that often disrupt state and local governance practices. This article will give a number of examples from takings cases, including several mentioned in Coan's book, e.g. the "physical invasion" and "total takings" categories, as well as the Court's vexingly intrusive decisions about conditions on land use permitting. Together these decisions create confusion, ignore the patterns in which property rights normally evolve, and impede state and local efforts to deal with major environmental problems such as waste management and adaptation to climate change. Many of the Court's decisions also strongly hint at an underlying prejudice against state and local government. [ABSTRACT FROM AUTHOR]

This essay builds on and complicates the judicial capacity model (JCM) for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include the history of the Court's caseloads, the argument that its decision in Rucho v. Common Cause Inc. holding partisan gerrymandering nonjusticiable was wrongly decided, and the history of the decision of Congress to maintain the Court's mandatory jurisdiction in constitutional challenges.

This essay examines the judicial capacity model for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include the use of the Fourteenth Amendment doctrine to show that the fears of excessive judicial power are a key launching point for the model, the consideration of substantive due process doctrine to argue that Coan's rendering of equal protection doctrine is too oriented, and the argument that the justices have other capacities to act.

This essay examines the judicial capacity model (JCM) for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include the argument that the Court should have struck down partisan gerrymandering as unconstitutional and how its failure to do so defect in current constitutional doctrine that are beyond the Court's control, and the majority opinion in Rucho v. Common Cause where the Court addressed the issue of partisan gerrymandering.

The essay proposes a judicial capacity model for the U.S. Supreme Court where it will not constrain the Court to defer to the political process. Topics covered include the future of the capacity-constrained domains where the conservative majority is motivated to expand the scope and rigor of judicial review, six potential scenarios focusing on the nondelegation doctrine that are consistent with the model, and two alternative scenarios that would represent falsifications of that model.

This essay examines the judicial capacity model (JCM) for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include an exploration of Coan's commerce power example to raise questions about the causal role played by the JCM in historical time, the features and limitations of the JCM model, and the argument that the development of the JCM requires its proponent(s) to engage more closely with history.

This essay assesses the strengths and weakness of the judicial capacity model for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include the intersection of his theory with a different capacity-driven theory of constitutional interpretation, the concern over the Court's federalism jurisprudence which sometimes misuses categorical rules, and the argument that federalism interpretation should be shared among all three government branches.

The essay explores a hypothesis about the U.S. Supreme Court's post-1937 federalism jurisprudence that might explain the arc of the legal doctrine and the judicial capacity model. Topics covered include the key features of judicial capacity model for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution," and the argument that the contours of the doctrine are, in part, an outgrowth of the commitment of the Justices to the rule of law.

This essay examines the judicial capacity model (JCM) for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include the elements of Coan's argument on the theory of judicial behavior centered on judicial capacity, and the arguments that Supreme Court justices have offered with regards to judicial defenses of judicial modesty in several of the Court's key voting rights opinion.

This essay examines the judicial capacity model (JCM) for the U.S. Supreme Court proposed by Andrew Coan in his book "Rationing the Constitution." Topics covered include a consideration of whether and how comparative capacity and competence issues should inform judicial decision making, and the argument that courts should consider both their own and the relevant political branch's capacity and competence.

The article presents a speech by Beth A. Williams, Attorney General at the U.S. Department of Justice, on nationwide injunctions. It mentions that district judges have prevented U.S. President Barack Obama and President Donald Trump administrations from enforcing their policies anywhere in the country. It also reflects an understanding of the constitutional limitations on the scope of judicial power.

The United States has long been an urban country, but it is fast becoming a metropolitan one. Population and economic activity are now concentrated in cities and their surrounding regions. The largest twenty of these city-regions account for almost fifty-two percent of total U.S. GDP. This "metropolitan revolution" represents a fundamental challenge to our current federalism. The old federalism assumed that capital and labor are fully mobile and that subnational governments-- in this case, states--will engage in competitive efforts to attract desirable investment while the federal government will assume the bulk of redistributive spending. The new federalism rejects the notion that economic growth can be attributed to interstate competition or that only central governments can effectively engage in social welfare redistribution. As economic activity becomes concentrated in cities, those cities become capable of engaging in forms of regulation and redistribution that the standard model of fiscal federalism had deemed impossible. Our current state-based federalism, however, fails to appropriately align capabilities with responsibilities. Instead of empowering cities, states are increasingly seeking to defund, defang, and delegitimize them. The mismatch between the prevailing sites of productive economic activity and the location of regulation and redistribution has subverted the values conventionally associated with federalism. State power is being deployed to undermine accountability, limit experimentation, and prevent the effective exercise of local selfgovernment. One current consequence of the gap between state and city power is increased political polarization. A future consequence may be an institutional restructuring that better reflects the new geography of production and population. [ABSTRACT FROM AUTHOR]

Separation of powers principles find their way into countless United States Supreme Court opinions, providing justifications for a variety of rules--from the nondelegation doctrine to standing. Predictably, they are also found in cases where the Court defines the amount of power the legislative branch should have over the judicial branch and over adjudications as a whole. The Court's decisions detailing Congress's power to control the federal judiciary by stripping jurisdiction and Congress's power to control adjudications through delegations to legislative courts both rely heavily on separation of powers principles. Curiously, however, the rules come out seemingly opposite. On the one hand, the Court holds that separation of powers requires that Congress have wide, perhaps limitless, latitude to assign or withdraw jurisdiction from Article III courts. On the other, the Court holds that separation of powers prohibits Congress from assigning jurisdiction over certain claims to non-Article III courts. This article examines the puzzling divergence of those rules, with a focus on the distinct separation of powers principles the Court uses to justify them. Finding that the principles applied in the two rules are logically inconsistent, this article asks how the Court found itself in such a logical bind. [ABSTRACT FROM AUTHOR]

Little is known about how the public responds to presidential statements on Supreme Court decisions. We argue that the president can serve as a source cue for both supporters and nonsupporters, shaping their opinions about the Supreme Court. This study offers a novel experimental test of presidential impact on individual assessments of the Court and potential sanctions. Our results suggest that individuals who approve of the president are likely to adjust their opinions to reflect the executive's stated position on Supreme Court decisions. However, those who do not support the president will react in a directionally opposed manner. Still, under the right conditions, our study suggests that a strategic president can take advantage of his ability to go public about the judicial branch. [ABSTRACT FROM AUTHOR]

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail. This Article offers one of the few defenses of nationwide injunctions and is grounded in a unique theory deriving from preclusion. A rich and nuanced preclusion jurisprudence has developed to answer the very question that the current debate raises: Who should be bound by the results of litigation? Preclusion principles help explain why nationwide injunctions do not flout any constitutional or structural constraints. These principles also reveal the circumstances under which such an injunction is (and is not) appropriate. Specifically, they suggest that while a nationwide injunction should not issue as a matter of course, it is permissible when the government acts in bad faith, including most notably when government officials fail to abide by settled law. [ABSTRACT FROM AUTHOR]

Deference is a fundamental concept in legal discourse, in general, and in administrative law, in particular. Rivers of ink have been spilled over the meaning of Chevron deference, but only scant attention has been given to the meaning of the concept of deference-a subject worthy of discussion in its own right. This Article intends to fill this gap by explaining the meaning of deference as a key to understanding the principal doctrines of administrative law. My main argument is that deference should be analyzed and understood in the context of the disagreement between the court (the deferrer) and the administrative agency making the initial determination (the deferree). The analysis of the relations between deference and disagreement enables me to distinguish between two fundamental modes of deference. The first is when the deferrer examines the contents of the deferree’s decision on its merits and decides, notwithstanding the disagreement with it, to defer. I term this mode of decisionmaking “disagreement deference.” In the other mode, when deciding to defer, the deferrer chooses to avoid examining the contents of the deferree’s decision, either in whole or in part. I term this mode of deference “avoidance deference.” Accordingly, in disagreement deference, content-independent considerations are weighed and balanced against all other considerations at the same time and on the same level. In avoidance deference, on the other hand, content-independent considerations enter the scene in a preliminary stage and affect the way by which the deferrer looks at all other considerations. I argue that the distinction between these two modes of deference is inherent to the idea of deferring. Therefore, this distinction is fundamental to the understanding of the concept of deference. I further suggest, that the division between these two modes of deference can serve as a key for understanding the developments of administrative law, I demonstrate this through two central themes regarding the doctrines of deference. The first, is whether there is a distinction between Chevron and Skidmore deference, I argue that-notwithstanding doubts raised by judges and scholars—these doctrines reflect two clearly distinct modes of deference. While Skidmore deference is disagreement deference, Chevron deference should be understood as a typical process of avoidance deference. Hence, the distinction between Chevron and Skidmore deference cannot be blurred or underestimated. The second is whether Chevron consists of two steps or only one step. I demonstrate that, as a typical process of avoidance disagreement, the Chevron test is inherently divided into two distinct steps. [ABSTRACT FROM AUTHOR]

This article discusses the U.S. Supreme Court and the decisions that it has made in cases involving the rights specified in the Constitution. It focuses on the Court's use of asterisks in decisions to indicate a limit, or pale, to the extent of judicial power. The asterisks that were used in the decisions written by Chief Justice John Roberts in the cases Bush v. Gore, Parents Involved in Community Schools v. Seattle School District No. 1, and Citizens United v. Federal Election Commission are considered.

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. [ABSTRACT FROM AUTHOR]

The article explores the issue of the distributive impact of judicial enforcement of social rights and its relationship with the type of remedy employed by courts when enforcing these rights. Topics discussed include ways in which social rights' judicial enforcement can often disproportionately benefit middle and upper classes; and the interpretation of social rights adopted by courts.

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to "get their way" more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine. [ABSTRACT FROM AUTHOR]

One hundred and twenty-five years after its publication, J. B. Thayer's classic 1893 article "The Origin and Scope of the American Doctrine of Constitutional Law" continues to influence our conversation about judicial power. Today his argument for a very strong presumption of constitutionality is criticized from both the left and the right. Yet his critics commonly misunderstand his argument. This article restores Thayer's case for judicial restraint by exploring his related work in the law of evidence. In that field and in constitutional law, Thayer paid particular attention to the nature and operation of presumptions in courts of law. His case that laws can be properly overturned by courts if seen as unconstitutional "beyond a reasonable doubt" does not rest on any empirical claim about the institutional capacity of legislatures to be thoughtful about their constitutional duties. It is meant simply to constrain the reach of judicial power. [ABSTRACT FROM AUTHOR]

Municipal bankruptcy's recent prominence has stimulated academic interest in the workings of Chapter 9, much of it critical, but no general framework has been developed against which scholars and policymakers can evaluate the law's performance. This Article offers a normative, economic account of municipal bankruptcy and uses that account to assess current law and suggest changes. It contends that bankruptcy's singular aim should be to preserve spatial economies-the advantages to locating within a municipality's unique geographic boundaries-when large public debts, by discouraging investment, threaten to dissipate them. Judged with this end in view, it is argued, Chapter 9 is a marked failure. The law's compass is so narrow that intervention comes, if at all, only when spatial economies are likely to have been squandered and economic dysfunction has taken hold. Municipal bankruptcy, as it now exists, serves mainly as an ad hoc and ill-conceived subsidy program. This Article outlines changes to the law that could hasten debt relief while acknowledging potential objections. [ABSTRACT FROM AUTHOR]

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the "complicated interdependent decisions" faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge's decision whether--and, if so, how--to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence. [ABSTRACT FROM AUTHOR]

The author presents a flowchart outlining the application of the Erie doctrine in U.S. cases which resulted from Erie Railroad Co. v. Tompkins case in which the Supreme Court held that federal courts exercising diversity jurisdiction did not have the judicial power to create general federal common law when hearing state law claims. Topics covered include choice of law considerations such as sovereignty and separation of powers and impact of borrowing considerations on content of common law.

An essay which explores the enduring influence of the Erie Railroad Co. v. Tompkins case in which the U.S. Supreme Court held that federal courts exercising diversity jurisdiction did not have the judicial power to create general federal common law when hearing state law claims. Topics covered include federal judicial role in the context of Erie, role of the federal courts under Erie and impact of Erie on the national separation of powers in the cause of federalism.

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the "prosecutor has more control over life, liberty, and reputation than any other person in America." In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors--not legislators, judges, or police--"are the criminal justice system's real lawmakers." And an unchallenged modern consensus holds that prosecutors "rule the criminal justice system". This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious echo chamber enabled by a puzzling lack of dissent. With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect. An unchallenged consensus that "prosecutors are the criminal justice system" and that the "institution of the prosecutor has more power than any other in the criminal justice system" has real consequences for criminal justice discourse. Portraying prosecutors as the system's iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes. The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors). [ABSTRACT FROM AUTHOR]

For many Americans, the rise of the administrative state signaled the deterioration of theframers' vision for American government. Gone are the days where the Legislative Branch primarily enacted laws, the Executive Branch enforced laws, and the Judicial Branch interpreted laws and adjudicated disputes. Today, the American form of government is an administrative state. Agencies possess legislative, executive, and judicial powers and wield those powers to administer critical government programs-often at the directive of the Executive Branch. 2 Scholars have repeatedly criticized the evolution of the administrative state as unlawful, unconstitutional, and have even gone so far as to call it a "bloodless constitutional revolution. "' But who is to blame for the creation of the administrative state? Does the blame fall on Franklin Roosevelt's New Deal? There is no doubt that the "growth of the administrative state can be tracedf, or the most part, to the New Deal, "butperhaps the New Deal "merely served as the occasion for implementing the ideas of America's Progressives. 4 This Comment argues that Congress has primarily contributed to the growth and empowerment of the administrative state. Not merely through the traditional process of creating administrative agencies, but through Congress's abdication of its legislative power to the President, who in turn utilizes the administrative agencies as tools to do his bidding. This Comment further argues that once Congress has delegated its legislative power to the President, and the President has empowered the administrative state, the Judicial Branch generally defers to both the President and the administrative state. This has emboldened the administrative state and enabled it to flourish. This Comment begins with a brief introduction of the historical principles underlying the American form of government and how, against the backdrop of the framers' intent, the administrative state undermines these principles. Part I discusses a broad overview of the current administrative state. It specifically considers what roles Congress and the President have traditionally played in the administrative state. Part II discusses Trump v. Hawaii and the Trade Expansion Act. Both illustrate Congress 's abdication of its legislative power and the President's use of that authority to empower the administrative state to act. Part III of the Comment discusses the two ways in which the judiciary branch acquiesces to actions taken by both the President and administrative agencies. [ABSTRACT FROM AUTHOR]

The article presents a speech by Arizona Supreme Court Justice Clint Bolick which was delivered at the U.S. Federalist Society for Law & Public Policy Studies National Student Symposium, and it mentions the judge's views about judicial activism, judicial power, and statutory interpretation in America. A duty to strike down unconstitutional laws is examined, along with the U.S. Constitution, and various constitutional law-related legal matters such as the Slaughter-House Cases.