Engstrom et al. on Managerial Courts

David Freeman Engstrom, David Marcus and Elliot Setzer have published Managerial Courts in the Yale Law Journal:

In recent decades, American courts have undergone a quiet but far-reaching revolution in their function and role. Particularly in state courts facing a crush of cases in high-volume dockets for debt, eviction, and family-law matters, case-by-case judging has gradually given way to court-devised systems that govern adjudication through centralized, routinized, and often digital and data-driven practices. Cases are triaged into differentiated procedural pathways; docket calendars are engineered to shape litigant behavior; decisional aids, digital dashboards, and order templates channel the discretion exercised by judges and staff; teams of quasi-judicial officers, staff attorneys, case-management professionals, and clerks absorb tasks once thought quintessentially judicial in order to ration scarce “judicial attention”; and internal and, increasingly, digitized and even AI-based tools perform quality-control tasks once left exclusively to appellate review. The upshot is that courts pervasively mix adjudication and bureaucracy, with profound but largely unexamined implications for fair and accurate adjudication, access to justice, due process, and the production of law.

This Feature surveys the managerial turn transforming American courts, tracing its roots, forms, and normative implications. An opening historical narrative situates the rise of court managerialism within a century-long arc from the New Deal to the digital age, highlighting its shifting causes and its consequences for American justice. Turning to the present, we offer a novel taxonomy of current managerial techniques that identifies the operational components of the managerial turn and synthesizes their many commonalities and interconnections. Finally, our normative and doctrinal analysis develops principles for reconciling court managerialism with classical conceptions of American courts and judges as passive, neutral adjudicators of whatever the adversarial process serves up. Can courts adopt bureaucratic tools without losing their distinctive institutional identity? Given twenty-first-century litigation realities, including the bracing fact that the majority of cases in the American civil-justice system now pit represented parties against unrepresented ones, managerial approaches will often outperform an unmediated adversary process on metrics of accuracy and efficiency. A constitutional reckoning awaits: while some parts of the new managerialism may run afoul of due process, others may be constitutionally required.

--Dan Ernst 

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Pfander and Zakowski on Non-Party Relief in the Early Republic

James E. Pfander and Mary Zakowski, Northwestern University Pritzker School of Law, have published Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent, which is forthcoming in the Northwestern University Law Review:

Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice.  But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told.

This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation.  Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all.  We focus here on yet a third example:  the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today.

History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties.  Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today.  In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.

--Dan Ernst

Thompson on Mandamus and Democracy

Elizabeth Lee Thompson, Southern Methodist University Dedman School of Law, has published Mandamus as a Democracy Tool, which is forthcoming in the Denver Law Review:

Legal scholars recognize the centrality of state courts and procedures to United States democracy but the study of state proceedings and their impact represents a largely unexplored arena. This Article illuminates one largely ignored procedural area—the writ of mandamus, which is a centuries-old writ recognized in all fifty states that a court issues to compel performance of a duty by a court or public official. The Article examines mandamus concerning public officers—specifically governors and secretaries of state—through an empirical study of 497 state cases over the last almost two centuries.

The Article composes the first empirical national study of mandamus petitions seeking to command action by public officers. The central conclusion is that mandamus forms a valuable democracy tool for citizens, particularly for citizen-directed litigation aimed at pressing public officials to correctly conduct elections. This principal conclusion contributes to a range of insights, including the predominance of mandamus cases concerning officials’ duties to conduct elections and certify candidates—and how these election cases display how individuals employed mandamus to press their democratic rights. The Article also recognizes the related trend of citizens employing mandamus to assert complaints arising from initiative and referenda processes, a finding that underscores how mandamus repeatedly supported direct democracy efforts.

Moreover, the Article brings a new perspective to recent scholarship that notes an increased politicization and frequency of state court mandamus filings and the related area of original jurisdiction. In contrast, this Article—with evidence from hundreds of cases—uncovers individuals’ and political groups’ enabling use of mandamus, including through its somewhat increased use over the last quarter century. Although recognizing mandamus’s potential drawbacks, the Article seeks to establish and encourage the role of mandamus as an accessible and powerful mechanism to support citizens’ rights and hold public officers accountable to perform duties.

--Dan Ernst

Post on the Judiciary Act of 1925 and the Supreme Court

Robert Post, Yale Law School, has posted The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925:

William Howard Taft (LC)

This paper is written for a forthcoming symposium on the Judiciary Act of 1925 that will appear in the Notre Dame Law Review. Before the Judiciary Act of 1925, the Supreme Court functioned as an apex tribunal whose docket was dominated by trivial cases that it was forced to decide due to its expansive mandatory appellate jurisdiction. The Act substituted discretionary writs of certiorari for a large proportion of these mandatory appeals, thus allowing the Court to determine the nature of its own docket.

The point of the Act was to allow the Court to select cases that would clarify important questions of law and establish national priorities in constitutional and legal matters. Over time, these criteria for case selection have led both the public and the Court to imagine its proper role as supervising the development of federal law. The difficulty is that we lack any account of judicial authority that might justify the Court’s assumption of this essentially policymaking role.

The most basic source of judicial legitimacy derives from the dispute settlement function of courts. American courts may make law and policy, but they are justified in doing so only when it is necessary to decide concrete cases. This can be seen in how our legal system conceives the relationship between the dicta and the holding of a judicial opinion, and in how it differently treats judicial opinions and judicial judgments. This was also the basis of Marbury’s claim that federal courts were entitled to engage in judicial review. If the forward-looking lawmaking of a legislature is justified by its representative nature, the forward-looking lawmaking of a court is justified by the need to resolve disputes.

Over time, the Judiciary Act of 1925 has encouraged the Court to imagine that it can exercise a lawmaking authority that is virtually free-standing and independent of the retrospective need to settle disputes. The Court exercises this authority not only in self-consciously using certiorari to set the nation’s constitutional agenda, but in using its cases primarily as vehicles for the declaration of forward-looking law. This shift has produced a profound crisis of the Court’s legitimacy. A court that nakedly exercises its lawmaking authority is vulnerable to the charge that it can no longer settle disputes in a fair and impartial manner. It is stripped of its most basic claim to legitimacy.

It was during the era of the Warren Court when the Court first fully inhabited the policymaking role made possible by the Judiciary Act of 1925. At that time the Court imagined itself as the leader of American constitutional culture. Modern American constitutional theory developed as an effort to explain and justify the independent lawmaking authority of the Warren Court. But because judicial lawmaking, like any lawmaking, must ultimately be vindicated by popular acceptance, professional legal theory cannot insulate a court from popular opposition. The irony of our present situation is that although the Roberts Court has rejected the substantive doctrine of the Warren Court, it has nevertheless fully embraced the judicial role pioneered by the Warren Court.

Like its predecessor, the Roberts Court seeks to lead the constitutional culture of the country. This has put its legitimacy profoundly at risk, a danger that cannot be averted merely by the proliferation of constitutional theories. Instead the Court must find some way to make its constitutional views acceptable to the nation.

--Dan Ernst

Bruhl on Law, Equity and Appellate Procedure

Aaron-Andrew P. Bruhl, William & Mary Law School, has posted Equity on Appeal:

It is generally understood that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity and that they did so by adopting the equity practices at almost every turn. This paper traces the origins of federal appellate procedure, where there is also a story of merger, indeed an interesting and more complex one. Just as we used to have separate systems of trial-level procedure for common law (typified by juries and damages) and equity (the chancellor, depositions, and injunctions), we used to have two separate systems for appellate review. At common law, a reviewing court examined the record for errors of law using the procedural vehicle of the writ of error after the final trial judgment. In the equity tradition, by contrast, an appeal was a rehearing of the law and the facts aimed at achieving justice, and the appeal did not need to await a final judgment. Unlike the story with federal trial procedure, where we can identify a date of merger (1938, with the Federal Rules) and a winning side (equity as conqueror), the federal appellate procedure of today merged fitfully over the course of two centuries and left us with a blended system that incorporates important aspects of both of the old traditions.

In addition to revealing some of the complicated roots and hybrid character of current federal appellate practice, the paper has a second goal, namely to show that an appreciation of the history can explain some current pressures in the system and can suggest some modest reforms. Some odd things are happening in the world of appellate courts (e.g., “universal” injunctions and objections thereto, the shadow docket, disregard of the deferential clear-error standard in high-profile cases). Some of these phenomena can profitably be understood as suppressed features of equity practice reasserting themselves. And the federal courts could benefit from the reemergence of some lost practices from the distinctive equity appeal. To be very clear, I do not urge that we somehow transplant the bifurcated appellate procedure of the past into our modern federal court system. Many old distinctions have been abolished for good reason. Neither should we resurrect equity practice in full. Nonetheless, there are some circumstances in which the equitable model of appeal — review of the facts, reweighing of the equities, tolerance of interlocutory appeals, an orientation toward concluding a matter with full justice — still makes sense today. That is, there are good functional reasons for non-antiquarians to appreciate aspects of the equitable model of appeal. In sum, this paper aims to bring the revival of interest in equity, now the subject of a lively scholarly literature, to the law of appeals. 

--Dan Ernst

Papp Kamali on Fact Finding in Medieval English Law

Elizabeth Papp Kamali, Harvard Law School, has published open access Finding Facts in Medieval English Law, in the Journal of Legal Analysis 15 (2023): 158-182:

Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.

--Dan Ernst

Solimine and Walker on the Three-Judge District Court

Michael E. Solimine, University of Cincinnati College of Law, and, posthumously, James L. Walker, Wright State University, have published The Strange Career of the Three-Judge District Court in the Case Western Reserve Law Review 72 (2022): 909-975:

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a presumed limit on judicial activism, decades later, plaintiffs in the Civil Rights Era came to see the court as advancing their agenda. Particularly in the South, some plaintiffs preferred to have their suits decided by three judges rather than the usual one, with a direct appeal available to a relatively friendly Warren Court. For that and other reasons, the total number of such cases in the district courts, and direct appeals to the Supreme Court, swelled in the 1960s and 1970s. But at the same time, the court came to be seen by many as administratively burdensome and unnecessary, and Congress in 1976 severely restricted the jurisdiction of the court, limiting it to hearing only reapportionment cases.

Analysis of the three-judge district court has so far largely relied on anecdotal evidence, and limited empirical studies, to examine whether some plaintiffs in the Civil Rights Era were correct to consider the court as friendly to their interests, as compared to a typical single district judge with the normal appeal process. This article breaks new ground and extends those studies by systematically reexamining these assumptions through a unique, nationwide database of 885 three-judge district court decisions, regarding constitutional challenges to state laws, handed down from 1954 (the start of the Warren Court) to 1976 (when Congress limited the Court’s jurisdiction). The study provides greater and more complete information on the number, types and results of cases litigated in the court, as well as on the dispositions of appeals to the Supreme Court. Among our findings are that such court decisions were  disproportionately in favor of plaintiffs, both in and outside the South, and that there was a high rate of appeal to the Supreme Court. We then consider how the decisions of the three-judge court, and its direct appeal mechanism, affected jurisprudential developments in several areas of civil rights litigation, including reapportionment and judicial abstention. We also address how these decisions impact the Judicial Capacity model, which posits that the sheer number of cases that come to the Court for review affects doctrinal developments. The study situates the three-judge district court in a richer historical context, and sheds light on the continued use of the court in more limited contexts to the present day.

--Dan Ernst

Dodge et al. on Forum Non Conveniens

William S. Dodge, University of California, Davis School of Law, Maggie Gardner, Cornell Law School, and Christopher A. Whytock, University of California, Irvine, School of Law, have published The Many State Doctrines of Forum Non Conveniens, which is forthcoming in the Duke Law Journal:

Forum non conveniens is not as “ancient” or as monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, is often used today by both state and federal courts to dismiss claims brought by against local businesses. The Supreme Court, however, only adopted a general doctrine of forum non conveniens in 1947; the doctrine’s “deep roots in the common law” are thought instead to be planted in the states.

This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the doctrine. First, forum non conveniens in the states does not have a “long history”—it is a twentieth-century phenomenon. Second, before the 1950s, no states permitted dismissal of claims brought against local defendants. Third, state experience with forum non conveniens has been and continues to be highly variable. Most states adopted a forum non conveniens doctrine only after the Supreme Court did; many initially rejected it; and half a dozen still prohibit its use in cases involving in-state plaintiffs or in-state causes of action. Idaho has not recognized the doctrine at all.

In addition to these doctrinal lessons, the states’ experience with forum non conveniens provides a useful case study for examining what we term “procedural federalism,” meaning the interactions between state and federal institutions that affect procedural development.

Procedural federalism reminds us that the procedure we have is not necessarily the “best” procedure we could conceive, while drawing our attention to pockets of divergence that may offer promising reforms. More broadly, it suggests a different approach to history than the one currently ascendant in federal courts and commentary. The iterative nature of procedural federalism makes clear that doctrines like forum non conveniens do not have perfect pasts, needing only to be rediscovered to be understood properly. Rather, procedural history is useful because it can help us understand how we ended up with the doctrines we have today, in order to better evaluate where we should go next.

--Dan Ernst

Pfander's "Cases without Controversies"

James E. Pfander has published Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press):

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

–Dan Ernst.  TOC after the jump.  

Funk on Oathtaking in American Law

Kellen Funk, Columbia Law School, has posted The Swearer's Prayer:

Police Court, 1912 (NYPL)

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

--Dan Ernst

New from the FJC History Office

The History Office of the Federal Judicial Center is out with two new websites.  The first, Cases that Shaped the Federal Courts, groups the Office’s case summaries, discussion questions, and excerpted documents in relation to various topics: Defining the Judiciary; Federal Jurisdiction; Federalism; Habeas Corpus; Judicial Independence; Judicial Review; Justiciability; Non-Adjudicatory Roles of Federal Judges; and Remedies.  The second is a series of essays on the history of the Rules of Practice and Procedure in the Federal Courts.

--Dan Ernst

Funk on Fusion and on Federal Procedure

Kellen Funk, Columbia Law School, has posted two book chapters.  The first is The Union of Law and Equity: The United States, 1800-1983, which appears in Law and Equity: Fusion and Fission (Cambridge):

From the colonial era to the present day, a number of jurisdictions in the United States have purported to fuse the disparate systems of common law and equity. This chapter focuses on the intellectual history of fusion from the 1848 Field Code to the 1938 Federal Rules. The New York corporate lawyer David Dudley Field and his fellow codifiers sought to replace the distinction between law and equity as the fundamental organizing principle of the law with the distinction between substance and procedure. They believed most of the distinction between law and equity inhered in institutions and procedures and would therefore disappear the moment a statute erected a single court with uniform proceedings. Their vision was shared by the architects of the federal procedure code a generation later. In practice, however, fusion remained far less complete than Field predicted or American lawyers commonly believe. The essay illustrates the dramatic fissions that remained in Field’s own post-fusion practice in 1870s New York.

The second is The Handmaid of Justice: Power and Procedure in the Federal Courts, which appears in Approaches to Federal Judicial History (Federal Judicial Center):

This essay sketches a story of federal procedure writ large: it tells how federal procedure morphed from being the essence of federal power to being a mere instrument of power, from the instantiation of Justice itself in the Marshall Court’s telling to the mere handmaid of Justice as Charles Clark described it. Along the way, I hope to do three things: 1) point out a few tantalizing gaps in our knowledge, should other researchers wish to pursue them, 2) provide a guide to the often puzzling sources of procedural law, especially across the nineteenth century, and 3) wrestle with the question of how federal jurists have defined "procedure" over time.

–Dan Ernst

Nash and Collins on the Certificate of Division and the Early Supreme Court

Jonathan Remy Nash, Emory University School of Law, and Michael G. Collins, University of Virginia School of Law, have posted The Certificate of Division and the Early Supreme Court:

The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.

As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.

--Dan Ernst

FJC's "Approaches to Federal Judicial History"

The Federal Judicial Center has just published Approaches to Federal Judicial History, edited by Gautham Rao, Winston Bowman and Clara Altman and downloadable here.  As Rao explains in his introduction:

This volume presents recent scholarship on the history of the federal court system. It builds on the symposium “The Federal Courts in American Historiography,” which convened at the Federal Judicial Center in the spring of 2016. The main historical themes of that scholarly meeting and of this volume are the practices and importance of the lower federal courts, the relationship between district and circuit courts and the Supreme Court, and the broader role of the federal court system in American economy and society.

Here’s the TOC:

Introduction by Gautham Rao

Part I: Historicizing the Judicial Branch
1.  The Indefinite Article: Historicizing the Judicial Branch by Winston Bowman
2.  The Handmaid of Justice: Power and Procedure in the Federal Courts by Kellen Funk
3.  Slavery and Emancipation in the Federal Courts, by Aaron Hall
4.  Writing a Court-Centered History of Administrative Governance by Joanna L. Grisinger

Part II: The Role of Lower-Court Histories
5.  Ordained and Established: The Role of Lower-Court Histories by Jake Kobrick
6.  All Rise: The Prospects and Challenges of Lower Federal Judicial Biography by Charles L Zelden
7.  The Federal Courts and Criminal Justice by Sara Mayeux

--Dan Ernst

Menkel-Meadow on Negotiating the US Constitution

Carrie Menkel-Meadow, University of California, Irvine School of Law and Georgetown University Law Center, has posted Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises, in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy, ed. Emmanuel Vivet (Intersentia 2019):

This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.

--Dan Ernst

Krishnan on Bhopal in the Federal Courts

Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States, which is forthcoming in the  Rutgers University Law Review (2020):

35 years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (UCIL), which had as its parent company, the American-based Union Carbide Corporation (UCC). Thousands were killed, with many more injured. 145 cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the Multi-District Litigation (MDL) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts – and not the U.S. federal judiciary – were the proper venue for hearing these claims.

Between 1986 and 1993, Judge Keenan dismissed all of the other MDL-Bhopal cases he heard. Then, between 2000 and 2014 a set of distinct, non-MDL Bhopal matters appeared in front of Judge Keenan. In all of these too, he issued dismissals. Indeed, the original MDL-process – coupled with the existence of internal federal courthouse rules – created a type of path dependence, allowing for all of the Bhopal-Union Carbide matters to come before Judge Keenan.

The thesis here is that following the MDL-consolidation, Judge Keenan became only more deeply wedded to the position he staked-out back in 1986. Subsequent, non-MDL Bhopal plaintiffs, seeking an independent assessment of their claims, found themselves tethered to the initial MDL-decision from years past. The broader lesson – beyond just this case study – is that in order for deserving plaintiffs to receive a fresh review in federal court, there needs to be an alternative imagination for how to deal with later cases that, although seemingly connected, are nevertheless distinct from the earlier MDL-process.

 --Dan Ernst

Okayama's "Judicializing the Administrative State"

Hiroshi Okayama, Professor of Political Science in the Faculty of Law at Keio University, Tokyo, Japan, has published Judicializing the Administrative State: The Rise of the Independent Regulatory Commissions in the United States, 1883-1937 (Routledge, 2019):

A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or court-like, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States.

Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.

Here's the TOC:

Introduction
Chapter 1: Why Did the U.S. Administrative State Judicialize?
Chapter 2: The Judicial Roots of the Interstate Commerce Commission
Chapter 3: Creating the "Supreme Court of Finance"
Chapter 4: Retrenching Administrative Commissions, Expanding State Judiciality
Chapter 5: The Institutional Consolidation of the Independent Regulatory Commissions
Conclusion

--Dan Ernst

Arlyck on Civil Forfeiture at the Founding

Kevin Arlyck, Georgetown University Law Center, has posted The Founders' Forfeiture, which is forthcoming in volume 119 of the Columbia Law Review (2019):

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

Alexander Hamilton (NYPL)

As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows—for the first time—that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent—which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

--Dan Ernst

Cushman on the Judicial Reforms of 1937

Barry Cushman, Notre Dame Law School, has posted The Judicial Reforms of 1937, which is forthcoming in volume 61 of the William and Mary Law Review (2020):

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction in the lower federal courts. The national/nationwide/universal injunction had yet to emerge, but friends of the Administration nevertheless maintained that injunctive relief granted by the lower courts was substantially and in some cases decisively frustrating implementation of vital elements of the New Deal agenda. This contribution to the William & Mary Institute of Bill of Rights Law symposium on "The Role of Courts in Politically Charged Moments" surveys the uses and perceived effects of such injunctive relief, and relates the story of efforts by the political branches to address this challenge through 1) enlargement of the lower federal judiciary, and 2) reforms to judicial procedure and/or jurisdiction that would inhibit the power of lower federal courts to thwart implementation of federal programs. The principal solution at which they arrived, which required among other things that only three-judge district court panels be authorized to enjoin the enforcement of federal law, remained in force for nearly forty years before it was repealed in 1976 – ironically, one might think, just as the national/nationwide/universal injunction was emerging as a phenomenon, and the stakes of a single judge having power to grant injunctive relief accordingly were becoming considerably elevated.

--Dan Ernst