Judicial Power and Influence on Population Health.

Although federal circuit and district court judges are placed within a federal hierarchy, and receive legal and judicial training that emphasizes the importance of the judicial framework and its structure, such judges are also subjected to other pressures such as the types of litigants within the courtrooms as well as their local political environment. Furthermore, such judges are apt to form their own views about politics and legal policy and are often appointed by presidents who approve of their ideological leanings. Thus, federal courts are caught between competing goals such as their willingness to maximize their preferred legal policy, and their place within the judicial hierarchy. This dissertation applies hierarchy and impact theory to assess the importance of the judicial framework and its socialization, by analyzing both the judicial opinions and votes of federal circuit and district court judges in obscenity cases during a four-decade period (1957-1998). The research presented here finds the influence of higher court precedent to correspond in part with the conception of a judicial hierarchy. An analysis of citations of Supreme Court precedent (Roth v. United States (1957) and Miller v. California (1973)) in lower court majority opinions suggests low levels of compliance: lower courts at the circuit and district court level do not signal to the Supreme Court their acceptance of High Court doctrine; thus, except for 'factual' cases, most circuit and district court decisions do not comply formally with higher court precedent. An analysis of judicial votes, however, suggests that a Supreme Court doctrinal shift (to Miller v. California) influences lower court decisions only at the circuit court level. Further investigation suggests that Supreme Court precedent has a greater influence in circuit courts than in district courts: not only is the magnitude greater for circuit (versus district) court decisions, such results occur when controlling for such factors as the appointing president, regional variations, various constitutional claims and types of litigants. Thus, it appears that the influence of Supreme Court doctrine is much stronger in the circuit courts (only one step removed from the Supreme Court) than in district courts yet the hierarchy is influential nonetheless.

Federalism as Docket Control

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

Where Was Everyone? The Fatal Siloing of Abortion Advocacy Meaghan Winter (bio) Click for larger view View full resolution On December 13, 2021, activists with ShutDownDC held a candlelight vigil to draw attention to the Supreme Court's attack on abortion rights and mark the fiftieth anniversary of Roe v. Wade. (Alex Wong/Getty Images) [End Page 100] I briefly dated a man who told me that he thought abortion should be legal but “didn’t think it should be used as birth control” and later, with no sense of irony, argued with me and then became so angry that I was frightened when I insisted that we use a condom. I bring this up for a couple of reasons. First, public writing about abortion is usually either personal and confessional or, more often, legalistic, political, and abstracted from what abortion is really about—people’s bodies, the most private aspects of their lives, and the bargains, dilemmas, and battles, small and large, that cisgender women face as a matter of course. Second, abortion is usually framed as a women’s issue, and it does, of course, foremost affect women. But straight men of my generation have also built their lives—lives often defined by enormous freedoms—on access to contraception and abortion. Those of us who came of age after Roe v. Wade have rarely had to reflect on how legal abortion has shaped our most basic assumptions about our lives. If you’ve grown up in a country with legal abortion, and particularly if you’re a straight man, I ask that you pause and imagine what your private life would have been like if had you faced the real possibility of creating a pregnancy that couldn’t be terminated every time you had sex. Consider everything that makes up your life—degrees or jobs, yes, but also your friendships, marriages, turns in the road, children born because they were wanted, whatever you value—and appreciate how much of it was made possible by living in a society where abortion was legal and often presumed accessible. The right to have an abortion is in peril. This spring, the Supreme Court will hand down its decision in Dobbs v. Jackson, the most pivotal abortion case in fifty years. Under consideration is Mississippi’s ban on abortions after fifteen weeks, which the state legislature passed in 2018. According to the central holding of Roe, all pre-viability bans are unconstitutional, which includes a fifteen-week ban. The only remaining abortion clinic in Mississippi, Jackson Women’s Health, sued the state, asking courts to block the law. A district court and then the U.S. Court of Appeals for the Fifth Circuit [End Page 101] (which is infamously conservative) sided with the clinic. The state appealed, and the Supreme Court agreed to hear arguments. Dobbs should be an open-and-shut case, and before 2020 it would have been. The only way for the Court to allow Mississippi its fifteen-week ban is to defy decades of precedent and gut the core of Roe. The mere fact that the Supreme Court decided to hear Dobbs is an ominous sign. Usually, the Court will take up a case when the lower federal courts disagree over whether a law is constitutional. In this case, the federal courts agree; they have consistently squashed total pre-viability bans because fifty years of precedent clearly prohibits them. For decades, the Court hasn’t bothered to take up abortion cases that obviously defy Roe. What has changed is the political makeup of the Court, particularly following Trump’s appointment of Amy Coney Barrett. Her nomination, like those of Neil Gorsuch and Brett Kavanaugh before her, was not an accident of history. The Trump administration was able to remake the judiciary for at least a generation, installing an unprecedented number of federal judges and three Supreme Court justices, because leaders of the conservative movement have spent forty years and millions of dollars to incubate a legal establishment that would shrink the power of the federal government, give more leeway to states and corporations, and prioritize conservative social views and textual interpretations of the Constitution. One powerful group, the...

Federal courts are reluctant to review the work of state and local administrative agencies. Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. At other times, federal courts have treated review of state administrative action as appellate in nature and therefore beyond the jurisdiction of the federal district courts, especially when review of agency action would be deferential under state law. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this Article, the authors challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law. In addition, they suggest that concern for federal court interference with uniformity of state policymaking has been overstated, while traditional concerns of federal jurisdictional policy in providing a neutral forum for out of staters as well as those raising federal challenges to state and local action, have been slighted. They also attack the characterization of judicial review of administrative action as appellate, and suggest why it is both descriptively accurate and normatively desirable to see judicial review as an original proceeding distinct from agency action. And in many cases, they observe, according state agency decisionmaking the same level of deference that it would obtain in a state court would serve as a better measure of the respect owed such decisionmaking than formal preclusion. Although the Article takes the position that federal courts should not shy from entertaining diversity-based challenges to state administrative decisionmaking, or even most challenges grounded in federal law, it concludes that, absent diversity, due process reasonableness challenges to agency action should ordinarily be relegated to state courts.

William Howard Taft and the Importance of Unanimity* SANDRA DAY O’CONNOR This Term, the Historical Society has put on a wonderful series about the man who is widely—and rightly—regarded as this Court’s greatest Chief Justice. Through his recognition ofthe right ofjudicial review, John Marshall secured for this Court a role in shaping the nation’s most important principles: racial equality, individual liberty, the meaning of democracy, and so many others. Learning more about John Marshall this Term has caused me to think about another great Chief Justice, who perhaps deserves al­ most as much credit as Marshall forthe Court’s modern-day role, but does not often receive the recognition: William Howard Taft. Taft, of course, was remarkable even before he became ChiefJustice—but even the presidency did not hold as much charm for Taft as did his eventual position on the Court. Mrs. Taft noted in her memoirs that “[NJever did he cease to regard a Supreme Court appointment as vastly more desirable than the Presidency.”1 Mrs. Taft, however, disagreed. She loved being First Lady, and was a good one, at that. She was responsible for bringing the cherry blossoms to Washington, a feat for which I am particularly grateful. She also made a bit of history on March 4,1909 by becoming the first First Lady to accompany her husband from the Capitol to the White House on Inauguration Day.2 She was a difficult woman to refuse. Taft, on the other hand, was an unpop­ ular President. His bid for re-election was so unsuccessful that he himself described his defeat as “not only a landslide but a tidal wave and holocaust all rolled into one general cataclysm.”3 Despite his failures as President, however, as chief executive of the Court Taft could only be considered a success. When he took over the job, he found a federal system overwhelmed with cases, causing the Supreme Court’s docket to be as much as five years be­ hind and placing the other federal courts in similarly dire straits.4 Taft, with his experi­ ence as an executive and his connections on Capitol Hill, succeeded in securing the ap­ pointment of twenty-four additional federal judges.5 He also founded the predecessor to the Judicial Conference of the United States, 158 JOURNAL OF SUPREME COURT HISTORY Helen Taft (pictured with her husband and son) be­ came the first First Lady to accompany her hus­ band from the Capitol to the White House on In­ auguration Day. She pre­ ferred being the wife of a President to being that of a Chief Justice. thejob ofwhich it became to keep statistics on the work of federal courts and to suggest re­ forms to keep the federal system functioning smoothly.6 Taft lessened the load on the Supreme Court by successfully lobbying Congress to pass a statute that would give the Court greater control over its own docket by substituting discretionary certiorari review for much of what had previously been mandatory appel­ late jurisdiction.7 But Taft’s concern for the Court went beyond simple efficiency: he had a vision of the Court much grander than that ofa court of error securing justice for individ­ ual litigants. As Taft saw it, individual litigants received all the justice they required through the federal district courts and courts of ap­ peals. The Supreme Court’s role was only “to maintain uniformity ofdecision forthe various courts ofappeal, [and] topass on constitutional and other important questions.”8 Control over its own docket allowed the Court to pass over ordinary lawsuits and spend more time on these sorts of questions. In keeping with his vision of the Court as a player in issues of national importance, Taft also lobbied Congress to appropriate funds to build the present Supreme Court Building, a building whose grandeur matched Taft’s sense of the significance of the business conducted therein.9 Chief Justices Taft and Marshall also placed great value on keeping the Courts over which they presided unanimous. John Marshall began his Chief Justiceship by putting to an end the English practice of seriatim opinions, THE IMPORTANCE OF UNANIMITY 159 Not only was Chief Jus...

The recent Supreme Court decision Jaffee v. Redmond (1996) recognized a psychotherapist-patient privilege in federal court. The background of privileged communication laws in general, the federal privileged communications rules in particular, the facts behind Jaffee v. Redmond, and the final court ruling are reviewed. The impact of the decision and possible future directions for the psychotherapistpatient privilege in federal and state courts also are discussed. The recent Supreme Court decision Jaffee v. Redmond ( 996) established that the communications between psychotherapists and patients are privileged in federal courts under certain circumstances. In this article we describe the general provisions of privilege communications law, the Jaffee v. Redmond case, the likely future directions for the psychotherapist-patient privilege in federal courts, and the potential effects this decision may have on state courts. In explaining the impact of the decision, we review the rationale for privileged communication laws in general and the background on federal privileged communication laws in particular.

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law

Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties. The Supreme Court, when it rendered its decision, seemed to be rectifying a bottleneck in Superfund remediation of hazardous waste. However, in the decade since this Supreme Court decision, several federal trial and circuit courts have circumvented the Supreme Court command. This article illustrates how the lower federal courts have done this without violating Article III of the Constitution, by re-defining a one-word term. The practical impact has been chaos in hazardous substance remediation across the U.S., affecting an estimated 600,000 contaminated waste sites. There are huge dollar impacts: addressing the 350,000 remaining contaminated sites in the U.S. would cost up to one-quarter trillion dollars, or an expenditure of $6-8 billion annually. This Article analyzes how the lower federal courts have circumvented the Supreme Court decisions, with particular focus on decisions and legal prestidigitation in the most recent four years. This lower court inversion of the law is without much basis in law, and resurrects exactly what the Supreme Court thought it had overruled unanimously. What transpired in enforcement in the lower courts is not what the Supreme Court’s opinion contemplated. This Article examines the method by which the lower federal courts have created an ongoing legal mechanism to circumvent the most important Supreme Court holding in a critical area of the economy.

INTRODUCTION Litigating takings claims under the U.S. Constitution involves pitfalls not encountered in ordinary constitutional litigation. With respect to takings claims against the federal government, just compensation can ordinarily be awarded only by the Court of Federal Claims (CFC), an court located in Washington, D.C. (1) The CFC, however, has no authority to grant equitable or declaratory relief. (2) Consequently, claimants who wish to advance claims enforced by injunctions or declaratory judgments (for example, that the government action was arbitrary and capricious) must seek relief in an Article III court. This means claimants must often split their claims between two courts, giving rise to tricky questions of timing and preclusion. If they file in the wrong court, or get the sequencing wrong, consideration of the takings claim may be foreclosed. (3) Congress could clean up the mess by rewriting the relevant jurisdictional statutes, but has failed to act. (4) With respect to federal takings claims against state and local governments, the Supreme Court has held that such claims must be initially presented to state courts before they can be heard in federal court. (5) Any legal and factual issues that are resolved by the state courts, however, cannot be relitigated in a subsequent challenge in federal court. (6) Since federal and state takings clauses are generally interpreted the same way, this gives rise to what has been aptly called a trap. (7) Although federal constitutional claims ordinarily can be tried in federal court under 42 U.S.C. [section] 1983, (8) takings claims, because they must be initially presented to state courts, are generally barred from being considered by any federal court other than the U.S. Supreme Court on certiorari from the final state court decision, which is rarely granted. This Essay argues that these pitfalls of litigating federal takings claims rest, in significant part, on an erroneous understanding about the scope of federal judicial authority under the Takings Clause. Starting from the premises that the Constitution does not prohibit takings but only requires that they be compensated, (9) and that compensation can be awarded only in a court in which the government has waived its sovereign immunity, (10) the Supreme Court has concluded--sometimes--that federal courts of general jurisdiction have no authority to consider takings claims as long as an action for compensation is available elsewhere. On other occasions however--and usually without acknowledging the inconsistency--the Court has reviewed takings claims without requiring that they first be submitted to the court having authority to award just compensation. The latter line of authority, although poorly theorized by the Court, is the correct one. There is no rule of law that prevents federal courts of general jurisdiction from adjudicating claims that arise under the Takings Clause --as long as they confine themselves to the question whether there has been a taking that entitles the owner to compensation. Given sovereign immunity, however, any actual award of compensation against the federal government or one of the states (as opposed to a local government) must be made by a court having jurisdiction to render such a judgment. The vehicle for allowing federal courts to consider takings claims, even if they have no authority to award just compensation, is what I call an anticipatory remedy. (11) The primary type of remedy I have in mind is a declaratory judgment, authorized by the Declaratory Judgment Act of 1934. (12) In appropriate circumstances, federal courts of general jurisdiction should be able to entertain claims that a federal or state government unit is proposing to engage in action that would constitute a taking, and if so, to issue a declaration that compensation would be required if the government persists. Anticipatory remedies could also take other forms besides declaratory judgments. …

Documentary Editing and the Jay Court: Opening New Lines of Inquiry Ene Sirvet and R.B. Bernstein For too long, Americans have thought that the history of the Supreme Court of the United States began with John Marshall. Even many lawyers, legal scholars, and historians, though aware that three Chief Justices preceded Mar­ shall, have dismissed their tenures as insignifi­ cant at best, failures at worst. Evaluating the Supreme Court that was by reference to the pow­ erful appellate tribunal that is wrongly gauges a Chief Justice’s success by two rules of thumb: did the Court under that ChiefJustice hand down important constitutional decisions that have be­ come bulwarks of modem American constitu­ tional law? Was that ChiefJustice a leading force in promulgating such decisions? Using the modem understanding of the Su­ preme Court as a measure to evaluate earlier Courts obscures how, by a process neither unop­ posed nor foreordained, the Court became the center of gravity of American constitutionalism. Moreover, focusing the historiography ofthe fed­ eral courts on the Supreme Court scants the vi­ tal role played in the development of American law by the lower federal bench, whether trial or appellate. The Promise of Documentary Editing One factor obscuring the early Court was the difficulty of access to historical evidence. Until recently, most primary sources for the early Court were unpublished, scattered in repositories around the nation, and difficult to use for any­ one lacking historical background and legal training. Lawyers of that era used a complex legal jargon that can baffle unprepared research­ ers. For example, studying the federal circuit courts requires a grasp of such subjects as the common law writ system and federal jurisdic­ tion. Knowing the difference between a suit “in trespass” and one “in trespass on the case” is key to analyzing the kinds of lawsuits that these courts heard; knowing the rules of federal juris­ diction reveals whether cases were properly brought before the courts and lays bare patterns of interstate litigation and the economic trans­ actions behind such suits. Now the “documentary editing revolution,” hailed by historian William W. Freehling as the most important development in modem Ameri­ 18 JOHN JAY can historiography,' has embraced the federal courts. Not only is John Marshall the focus of one ofthe most distinguished documentary edit­ ing projects, The Papers of John Marshall— two other projects examine the pre-Marshall fed­ eral judiciary: The Documentary History of the Supreme Court ofthe United States, 17891800 and The Papers of John Jay. A documentary history portrays the growth of an institution or process of government, trac­ ing the development ofcollegial relations among its members and its processes of collective deci­ sion-making. A documentary editing project keyed to an individual complements institutional documentary histories by presenting the institution’s development through that person’s eyes—especially when, like Jay or Marshall, he is the institution’s leader. A Chief Justice over­ sees and speaks for the Supreme Court and the federal judiciary; he monitors the administration of the federal bench, the courts’ ability to fulfill their constitutional and statutory duties, and the judiciary’s place in the public mind. Focusing on the first Chief Justice offers a unique view ofthe federal courts’ early develop­ ment. This is the goal ofthe last volume of The Papers ofJohn Jay: ChiefJustice and Feder­ alist Statesman, 1789-1829, which will exam­ ine Jay as the Court’s ChiefJustice and as one of six circuit judges. It will assess the burdens he faced while riding circuit and while presiding over the Court, leading his colleagues in defin­ ing the Court’s role in an evolving constitutional system. It will describe the number and kinds of cases that Jay heard, and it will trace patterns of federal litigation. It will analyze how Jay and his colleagues grappled with the problem of extrajudicial activities and responsibilities— those imposed by Congress (as in the 1792 stat­ ute asking the Justices to hear RevolutionaryWar veterans’ pension claims) and those sought by President George Washington and his adminis­ tration (such as his 1793 request for an advisory opinion from the Court, discussed in the follow­ ing article, and his 1794 naming of Jay as Min...

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

ongressional "court stripping," or the attempt to take jurisdiction away from courts to review matters of all types, is not new. Jurisdiction-stripping proposals were advanced in Congress as early as 1830. Between 1953 and 1968, over sixty bills were introduced into Congress to restrict federal court jurisdiction over particular topics. The 1970s and 1980s saw efforts to strip the courts of jurisdiction in busing, abortion, and school-prayer cases. Sen. Jesse Helms once proposed a bill to strip the federal courts of jurisdiction to review school-prayer cases. Barry Goldwater, upon learning of the Helms bill, dismissed the proposal as the equivalent of "outlawing the Supreme Court." Congress has for years attempted to strip courts of their jurisdiction to review actions of federal law-enforcement agencies and state courts in order to reverse deci sions they do not like, punish judges, or even avoid future rulings they may not like. Federal courts, which have been essential in expanding and preserving individual rights, are now being barraged by congressional attempts to strip the courts of their power to review. Congress's decisions about the courts' jurisdiction, including appellate jurisdic tion, have considerable effects on their caseloads, although not always in ways that might have been anticipated. Nowhere has this trend been more apparent than in Congress's legislation in the immigration area. With the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a Republican Congress and the Clinton administration fundamentally altered judicial review of immigration matters. Despite this legislation restricting judicial review, the caseload at the U.S. Court of Appeals has risen markedly, so much so that immigra tion cases now comprise 18 percent of the federal appellate civil docket. The legislation. The Supreme Court has suggested that "protecting the Executive's discretion from the courts. . . . can fairly be said to be the theme of the legislation." Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 486 (1997). The AEDPA eliminated judicial review for criminal aliens. It stated that "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against any alien who is removable by reason of hav ing committed a criminal offense." In addition, the act deleted the prior provision in federal law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders. The IIRIRA was an attempt by Congress to eliminate judicial review of non final orders or rulings primarily involving aliens in removal proceedings. It also con

Historically in America, Black people have experienced dubious victories in the legal system with regards to their right to an education, a privilege recognized in state constitutions. Efforts by Black people to gain a quality education and significantly impact achievement and their quality of life through America's legal system started more than 100 years before the Brown v. Board of Education decision in 1954. This article chronicles these efforts and underscores some of the many cases that have impacted achievement of Blacks in America. Moreover, it explores options for the future and concludes that the struggle for educational opportunity for Blacks in this country is vying for the attention of the increasingly more conservative federal court judges. [T]he Negro needs neither segregated schools nor mixed schools. What he needs is Education. What he must remember is that there is no magic, either in mixed schools or in segregated schools. A mixed school with poor and unsympathetic teachers, with hostile public opinion, and no teaching of truth concerning Black folk, is bad. A segregated school with ignorant placeholders, inadequate equipment, poor salaries, and wretched housing, is equally bad. Other things being equal, the mixed school is the broader, more natural basis for the education of all youth. It gives wider contacts; it inspires greater self-confidence; and suppresses the inferiority complex. But other things seldom are equal, and in that case, Sympathy, Knowledge, and Truth outweigh all that the mixed school can offer. (Du Bois, 1935, p. 335) On May 17, 1954, the U.S. Supreme Court struck down the applicability of the separate but equal doctrine to education in its unanimous decision, Brown v. Board of Education of Topeka, Kansas (1954) (Brown I). The High Court held that segregation deprived Black students of the protection of the laws guaranteed by the 14th Amendment of the Constitution. However, the Court provided no direction on how desegregation of schools was to be implemented. In Brown v. Board of Education of Topeka, Kansas (1955) (Brown II), the Court re-emphasized that segregation was unconstitutional and pointed out that school authorities were given the primary responsibility for elucidating, assessing, and solving problems associated with it, and the lower courts were responsible for determining whether the action of school authorities constituted good faith implementation of the governing constitutional principles that required that segregation be removed from schools. In an effort to expedite this serious work, the Supreme Court offered some general suggestions that lower courts might consider in addressing the problem, including those related to administration, condition of school plant, school transportation systems, personnel, or discriminatory local laws and regulations. The Supreme Court acknowledged that it may take some time for school districts to create plans to eradicate discrimination, but it ordered in Brown II that public schools in that case admit students on a racially nondiscriminatory basis with all deliberate (p. 301), confirming the fact that they expected full compliance to start as soon as was practicable. However, many challenges, often rooted simply in racism, prevented this order from being carried out with deliberate speed throughout the nation. In fact, years passed before many school systems even attempted to desegregate; and, to delay the process even more, resistant state officials and state legislatures and sometimes White citizens erected barriers to avoid carrying out this order while the expected beneficiaries, Black children, helplessly waited as their education suffered (Gordon, 1994). Some scholars argue that Blacks were experiencing more academic success prior to the Brown I decision to desegregate schools. On balance, scholars have countered that the Brown decisions sought desegregation at all costs, even when Black students appeared to be achieving in segregated but successful schools (Bell, 1987; Cole, 1986). …