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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.

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.

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.

In recent years, the Supreme Court has increasingly made “reasonableness” the central inquiry of whether a search or seizure is constitutional under the Fourth Amendment. The rise of the reasonableness approach has coincided with originalist scholarship that claims this interpretation is more consistent with the Amendment’s text and history. This Note looks at Framing-era search-and-seizure practice and argues that the Court’s modern reasonableness interpretation is, in fact, ahistorical and inconsistent with Framing-era practice and the Amendment’s original understanding. Not only is there scant evidence that the legality of searches and seizures turned on their reasonableness during the Framing era, but the arguments made in favor of the Court’s modern reasonableness approach are based on flawed historical assumptions. As a result, the Court’s various applications of its reasonableness interpretation are all inconsistent with Framing-era practice and the Amendment’s original understanding.

The Federal Sentencing Guidelines are riddled with policy oversights. In United States v. Kimbrough, the Supreme Court permitted district courts to vary from the Guidelines based on categorical policy disagreements. Yet, although district courts often vary from the Guidelines for individualized reasons, the policy variance power has been underutilized. This Note provides a case study of the history of one obscure Guideline, section 2M5.1, as applied to one particular type of case, a nonmilitary-related embargo violation. The case study exposes the United States Sentencing Commission’s systemic oversights in the history of creating Guideline section 2M5.1 and demonstrates how lawyers and judges can rely on that history on a case-by-case basis to expose categorical problems with Guidelines policy. Employing such a categorical policy approach to supplement an individualized approach promotes fairness, transparency, and feedback for future refinement of the Guidelines.

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth century, “political questions” were not constitutional questions but instead were factual determinations made by the political branches that courts treated as conclusive in the course of deciding cases. Second, when the current doctrine was finally created in the mid-twentieth century, the Supreme Court used it to entrench, rather than to undermine, the Court’s emerging supremacy over constitutional law. Under the current doctrine, the Court asserts for itself the power to decide which institution decides any constitutional question. With control over that first-order question, the Court can conclude not only that an issue is textually committed to a political branch but also that an issue is committed to the Court itself. This analysis turns on its head the assumption of scholars that the current doctrine is at odds with judicial supremacy. The modern political question doctrine is a species of—not a limitation on—judicial supremacy.

New Approaches to Ensure Meaningful Participation

This Lecture discusses innovative approaches that courts are employing and developing to ensure that all participants in court proceedings have meaningful access to justice. Approaches include making the most of technological advancements to provide electronic access to information and to promote an understanding of the legal process, working with the legal community to provide representation to self-represented parties, and examining the legal process in order to simplify procedures, better manage cases, control costs, and provide workable alternatives to traditional methods for resolving disputes.

Factfinding in Appellate Court Review of Agency Rulemaking

Recognizing the need for a check on agencies’ discretion, Congress has assigned the task of reviewing agency rulemaking to the judiciary. Yet, by allocating much of that review directly to appellate courts, Congress has forced them to find facts. For example, when deciding challenges to a rule that an agency has promulgated, these courts must often hear for the first time plaintiffs’ evidence about factors that the agency failed to consider. When deciding challenges to an agency’s failure to act, they must weigh the plaintiffs’ proof about the consequences of the delay against the factual explanation the agency offers for its inaction. And, in any of these challenges, appellate courts may have to rule on facts related to standing. At best, because appellate courts typically lack the tools and institutional experience to conduct factfinding effectively, Congress has unduly burdened these courts and magnified the risk of inaccuracy. At worst, it has created incentives for appellate courts to defer to agencies and thereby weakened the entire institution of judicial review. The solution is simple: Congress should return these factfinding responsibilities to district courts.

Madison Lecture

This Lecture examines judicial independence, judicial accountability, and judicial governance. I discuss the role the current system of judicial self-governance plays in ensuring both accountability and independence—two sides of the same coin. Yet, two recent legislative proposals threaten not only decisional independence but also the institutional independence of the judicial branch itself. The first calls for an inspector general for the federal judiciary and the second proposes to regulate Supreme Court recusals. This Lecture discusses how the inspector general and Supreme Court recusal bills would lead to significant changes in the way the judiciary functions, and concludes these changes would nonetheless be insignificant compared to the threat they pose to the decisional independence of the federal judiciary.

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal that class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

But do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players that trade in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.

Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery, and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with defendants to embed fee provisions in global settlements—a well-recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them.

These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful incentive: attorneys’ fees.