Judicial Process


State Enforcement of Federal Law

Margaret H. Lemos

Federal law is enforced through a combination of public and private efforts. Commentary
on the choice between public and private enforcement has generated a
remarkably stable set of arguments about the strengths and weaknesses of each
type. But the conventional wisdom tells only part of the story, as it ignores variations
within the category of public enforcement. Many federal statutes authorize
civil enforcement by both a federal agency and the states. State enforcement is different
from federal enforcement in several important respects, representing a unique
model of public enforcement. The authority to enforce federal law is also a unique
form of state power. As I show, enforcement authority can serve as a potent means
of state influence by enabling states to adjust the intensity of enforcement and to
press their own interpretations of federal law. To date, enforcement has been
neglected in the federalism literature, which tends to equate state power with state
regulation. But enforcement authority may exist outside of regulatory authority,
allowing states to operate even in areas where state law is preempted or state regulators
have chosen not to act. And enforcement empowers a distinct breed of state
representatives—elected, generalist attorneys general. Just as state attorneys general
differ from federal agencies as agents of enforcement, they differ from state agencies
as agents of federal-state interaction. Moreover, attorneys general in most states
are independent from the state legislature and governor, and may represent different
constituencies. Enforcement authority therefore opens up new outlets for
state-centered policy, empowering actors whose interests and incentives distinguish
them from the state institutions that dominate other channels of federal-state

Noticing Crisis

Pieter S. de Ganon

This Note contends that the Supreme Court has systematically used the doctrine of
judicial notice to portray the nation’s schools as rife with crisis. Ignoring the record
before it, the Court has relied on the “crisis” it has manufactured to curtail students’
Fourth Amendment rights. Critiquing this practice and likening it to the Court’s
invocation of “emergency” in the context of war and natural disaster, this Note
concludes that the Court ought to be held more accountable for the “facts” that it
judicially notices.

Chevron’s Regrets: The Persistent Vitality of the Nondelegation Doctrine

Michael C. Pollack

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices bemade by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court has manipulated
the application of the Chevron test to find statutory clarity and preclude deference to agencies for exactly this reason. Led by litigants who highlighted the separation of powers implications of the agency’s interpretations, the Court has suggested both that the principles of nondelegation remain a constitutional constraint and that alluding to them, even without resort to some canon of interpretation, is a viable litigation strategy.

This Note exposes and defends the persistent, if unspoken, role played by the principles of nondelegation in the jurisprudence of the administrative state in an era of Chevron deference. It draws a strategic and doctrinal framework from which to challenge agencies’ statutory interpretations and presents a live circuit split involving the authority of the Food and Drug Administration to criminalize certain failures to maintain research records that is a ripe opportunity for applying that framework.

The Annulment Committee’s Role in Multiplying Inconsistency in ICSID Arbitration: The Need to Move away from an Annulment-Based System

Dohyun Kim

This Note critiques the current structure and practice of the ICSID annulment mechanism by shifting away from the traditional focus on the ICSID arbitration system as a dispute settlement body and instead analyzing the annulment mechanism’s role in a progressively “judicializing” investor-state arbitration system. Recent developments in ICSID arbitration indicate that, over time, ICSID arbitral tribunals have undergone “judicialization”—that is, they have acquired domestic court–like characteristics enabling them to impact state and individual behavior prospectively, rather than merely to resolve the specific dispute at bar. These developments raise the question of whether the current annulment mechanism, which provides for cancellation of tribunal awards on a strictly limited set of grounds, is capable of accommodating this shift. Although the drafters of the ICSID Convention did not intend to allow an annulment committee, convened after the tribunal’s issuance of an award, to review the substantive merits of that tribunal’s award, annulment committees have previously based their decisions on more expansive substantive review than that permitted under the Convention. This Note argues that in a recent series of decisions, annulment committees appear to be engaging in greater substantive review of tribunals’ awards once again, a fact that triggers a renewed sense that annulment committees are still confused over the proper role of annulment in the ICSID arbitration system. Such confusion has serious implications in that it leads to the production of inconsistent decisions at the annulment level of the ICSID arbitration system, thus adding to the layer of inconsistent decisions produced at the tribunal level. These incoherent decisions may ultimately imperil the legitimacy of the ICSID arbitration system as a judicialized body for shaping prospective state and individual behavior. To strengthen the legitimacy of ICSID arbitral decisions and promote further development of coherent international investment law, I argue that it is critical for ICSID to establish a mechanism with official powers of substantive review.


The Honorable Robert A. Katzmann

Madison Lecture

In his James Madison Lecture, Judge Robert A. Katzmann argues that federal courts have much to learn from Congress and agencies about how statutes should be interpreted. In the voluminous discussion of how courts should construe statutes, there has generally been little consideration given to an appreciation of how Congress actually functions; how Congress signals its meaning; and what Congress expects of those interpreting its laws. In examining that lawmaking process, Judge Katzmann looks to how legislators signal their legislative meaning to the first inter- preters of statutes—agencies—and to how agencies regard Congress’s work product in interpreting and executing the law. He contends that Congress intends that its work be understood through its institutional processes and reliable legisla- tive history. In our constitutional system in which Congress is charged with enacting laws, the methods by which Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined. Agencies well appreciate and are responsive to Congress’s perspective that such materials are essential to construing statutes. By understanding statutory interpretation as an enterprise involving other institutions, we can better address the question of how courts ought to interpret statutes. Against that background, Judge Katzmann examines two approaches to the judicial inter- pretation of statutes—purposivism and textualism—and concludes with a discus- sion of practical ways in which Congress may better signal its meaning and how courts may better inform Congress of the problems courts identify in the statutes they review.

The Path of the Constitution: The Original System of Remedies, How it Changed, and How the Court Responded

Sina Kian

This Article explores how the path of the common law shaped some of the Supreme Court’s most important decisions regarding constitutional remedies. The Article first introduces the original system of common law remedies for constitutional rights. It then explains how these remedies atrophied, both doctrinally and pragmatically, and how this posed deep problems for the constitutional rights that depended on them. The Article selects three cases—Mapp v. Ohio, Monroe v. Pape, and Bivens v. Six Unknown Named Agents—to demonstrate how concerns about those remedies shaped constitutional rights. These cases have been debated many times over, but for all the debate, there has been scarce attention paid to the problem the Court was addressing: the relationship between the Constitution and common law remedies and, more specifically, what to do about constitutional rights that depended on dwindling common law remedies. Indeed, this relationship hardly receives any attention in classrooms or scholarship today, yet it is at the core of the judiciary’s role in implementing the Constitution. This descriptive gap has distorted our normative debate about the relative merits of these cases. The last part of the Article suggests four potential methodologies for coherently managing the relation- ship between the Constitution and common law remedies.

Overturning Precedent: The Case for Judicial Activism in Reengineering State Courts

The Honorable Paul J. De Muniz

Brennan Lecture

In the Seventeenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Paul J. De Muniz, Chief Justice of the Oregon Supreme Court, discusses the challenges confronting state judiciaries in the face of economic crises and corresponding state budget cuts. Chief Justice De Muniz urges state court leaders to adopt the concept of reengineering to overhaul antiquated court management processes in favor of more efficient alternatives. Drawing from the Oregon state judiciary’s own efforts, Chief Justice De Muniz identifies court governance structures, case administration, essential court functions, and leadership as key targets in any successful reengineering endeavor.

Judges and Their Papers

Kathryn A. Watts

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the Justices of the U.S. Supreme Court and other federal judges own their working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues such as abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the fiftieth anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand, to the judiciary’s independence, collegiality, confidentiality, and integrity on the other.

This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the thirty-fifth anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property—just as presidential papers are. Although there are important differences between the roles of president and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather than counseling in favor of private ownership, the unique position of federal judges, including the judiciary’s independence in our constitutional design, suggests the advisability of crafting rules that speak to reasonable access to and disposition of judicial papers. Ultimately, this Article—giving renewed attention to a long-forgotten 1977 governmental study commissioned by Congress—argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality, confidentiality, and integrity.

Convenient Facts: Nken v. Holder, the Solicitor General, and the Presentation of Internal Government Facts

Nancy Morawetz

In April 2012, facing a court order to disclose internal Justice Department e-mails, the Office of the Solicitor General (OSG) wrote to the United States Supreme Court to admit that it had made a factual statement to the Court three years earlier in Nken v. Holder about agency policy and practice that was not accurate. The statement had been based on e-mail communications between Justice Department and agency lawyers. In fact, the statement neither reflected the content of the e-mails nor the actual policy and practice of the relevant government agencies. The letter promised remedial measures and concluded by assuring the Court that the OSG took its responsibility of candor seriously. The underlying factual representation by the OSG in the Nken case was unusual because it attracted attention and lengthy Freedom of Information Act (FOIA) litigation that led to the disclosure of the communications that served as the basis of the statement. But it is not at all unusual as an example of unsupported factual statements by government lawyers that are used to support legal arguments. Indeed, unsupported statements appear in OSG briefs on a wide range of issues. These statements benefit from the unusual position of the government: It has access to information not available to other litigants, and it benefits from a presumption of candor that endows its statements with a claim of self-evident authority that no private litigant could match.

The Nken case provides a unique opportunity to explore the consequences of judicial acceptance of fact statements provided by the OSG. Because of FOIA litigation, we have an opportunity to examine how the OSG gathered information as well as the role played by government counsel at the Justice Department and the interested agencies. This examination shows multiple dangers with unsupported statements about internal government facts. It also demonstrates the difficulty of relying on lawyers representing the government to seek out and offer information that will undermine the government’s litigation position. Finally, it shows that it is dangerous to rely on the party that has misled the Court to develop an appropriate remedy.

Prevention of misleading statements could be pursued through greater self-regulation, prohibition of extra-record factual statements, or through a model of disclosure and rebuttal. This Article argues that the experience in Nken reflects the grave danger in presuming that self-regulation is an adequate safeguard against erroneous statements. It further argues that despite the appeal of a rigid rule that prohibits such statements, such an approach ignores the Court’s interest in information about real world facts that are relevant to its decisions. The Article concludes by arguing that the best proactive approach is to adopt a formal system of advance notice combined with access to the basis of government representations of fact. It further argues that courts should refuse to honor statements in court decisions that are based on untested and erroneous statements of fact by the government.

The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record

Bertrall L. Ross II

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where the state produces adequate evidence to support its action, the Court sometimes invalidates the law because it does not believe the state’s facts. In these cases, the Court treats the state like a witness in its own trial, subjecting the state’s record and the conclusions drawn from it to rigorous cross-examination and second-guessing.

In this “credibility-questioning” review of the record, the Court appears to be animated by an implicit judgment about the operation of the political process. When Justices consider the political process to have functioned properly, they treat the state as a good faith actor and merely check the adequacy of its evidence in the record. But when Justices suspect that the democratic process has malfunctioned because opponents of the law were too politically weak or indifferent to challenge distortions in the record, they treat the state as a witness, suspecting bias in its factual determinations supporting the law.

In this Article, I both support and critique this new form of review. Contrary to conventional wisdom, I argue courts should engage in credibility-questioning review of the record when the political process has malfunctioned. Public choice and pluralist defect theory imply that the record supporting a law is more likely to be distorted in contexts of democratic malfunction. But for reasons of institutional legitimacy and separation of powers, I argue courts should limit credibility-questioning review to contexts where there is actual proof of democratic malfunction.

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