Judicial Process

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.

Pierre N. Leval

In the New York University School of Law's annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court's new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

Michael A. Livermore & D. Theodore Rave

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation;  rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls "active liberty." Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Joy Milligan

Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges play a substantial role in regulating our political morality; at the same time, race and ethnicity influence public views on such issues. In cases that involve difficult legal questions of political morality, judges should seriously consider all moral conceptions as potential answers. Racial and ethnic diversity is likely to improve the  judiciary's institutional capacity for openness to alternative views—not because judges of any given race will "represent" a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities. Judicial dialogue, taking place within appellate panels and across courts, serves to diffuse alternative viewpoints more broadly. Greater judicial willingness to consider disparate moral views should ultimately result in better decisions regarding political morality. Specifically, the judiciary may fashion new compromises to resolve political-moral dilemmas, judges and society may better understand the contours of such dilemmas, and the public may even arrive at new conclusions regarding basic questions of political morality.

Drew C. Ensign

Although stare decisis is a firmly established doctrine tracing its roots to fifteenthcentury English common law, the Rehnquist Court developed it in remarkable ways. The Court's decisions effectively made liberty considerations an important stare decisis factor in constitutional cases. Where prior decisions took an expansive view of the liberty protections of the Constitution, they were more likely to be upheld, and vice versa. This Note analyzes this development, perhaps best exemplified by the differing outcomes in Casey and Lawrence, as well as its implications for the future jurisprudence of the Supreme Court.

The Honorable Diane P. Wood

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an "unwritten Constitution" since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may "find" unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.

The Honorable David S. Tatel

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is "emphatically the province and duty of the judicial department to say what the law is."' This debate often has focused on Supreme Court decisions involving some of our nation's most historic events: the Court's 1873 evisceration of the Fourteenth Amendment's Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of "judicial activism."

Amy Powell

To date, no international criminal tribunal has seriously considered using a jury trial. In the International Criminal Court (ICC), for example, a panel of judges appointed by the Assembly of States Parties acts as the fact finder. In this Note, Amy Powell examines the theoretical justifications for a jury in the context of international criminal adjudication. She concludes that the use of a jury--or, at a minimum, the integration of the important values underpinning the institution of the jury--would greatly benefit the ICC by protecting important principles of justice.

Kristina Daugirdas

Once the D.C. Circuit has concluded that a rule promulgated by an agency is in some way arbitrary or capricious, the court has at least two options: It can either vacate the rule, or remand it to the agency without vacating it. In the latter case, the agency can continue to implement the challenged rule while revising its explanation to address the defects identified by the court. This Note analyzes the D.C. Circuit's application of the remand-without-vacatur (RWV) remedy during the decade since the court articulated a generic test for its use. This Note argues that RWV is most justified in cases where the costs of vacating agency rules are particularly high, and where the benefits in terms of improving the agency's decisionmaking process are minimal or nonexistent. Based on a survey of the rulemaking cases in which the court has applied RWV, this Note argues that while the test that the D.C. Circuit uses to determine the appropriateness of RWV is consistent with the theoretical underpinnings justifying the remedy, the court's application of that test is frequently flawed. This Note also documents a response to RWV that is less than ideal; agencies generally respond slowly to RWV judgments, and occasionally do not respond at all. The Note concludes that, while the D.C. Circuit possesses adequate tools to counteract agencies' tendency to ignore judicial decisions in individual cases, it has employed them too sparingly in recent years. This Note then develops a revised approach that would promote the remedy's beneficial aspects while limiting its negative effects.

Paul Killebrew

What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that true? This Note contends that it need not be. Taken at face value, textualism serves neither conservative nor liberal ends. However, those most closely identified with textualism—namely, Justice Antonin Scalia and Judge Frank Easterbrook—practice a form of textualism that creates institutional dynamics that tend to reconcile with a preference for limited government. Their textualism, which this Note dubs “clarity-driven textualism,” constrains the functioning of Congress, executive agencies, and judges in ways that make government hard to do: Statutes are hard to write, agencies have tightly circumscribed authority, and judges have few opportunities to exercise discretion. This Note argues that textualism alone will not necessarily produce these outcomes. By identifying how clarity-driven textualism departs from the bare requirements of textualism itself, this Note seeks to rescue textualism’s powerful interpretive approach from its current political entanglements.

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