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Abstract:
We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I tribunals altogether; the provision vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I tribunals - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional courts as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law.

This Article develops a new "inferior tribunals" account of the interplay between Article I and Article III. Building on the constitutional distinction between "inferior tribunals" (in Article I) and "inferior courts" (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (which were understood to differ importantly from the nationally uniform rules of law that Article III courts were expected to enforce). The Article further suggests that the constitutionality of Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferiority of Article I tribunals with a variety of tools - including habeas corpus, mandamus, and officer suit litigation. While the inferior tribunals account does not demand appellate review in every case, it does secure the Court's role as the final expositor of federal law.

Abstract:
Most accounts of the power of Congress over the appellate jurisdiction of the Supreme Court focus on the Exceptions and Regulations Clause and the degree to which it authorizes Congress to restrict the Court's role as the ultimate interpreter of federal law. [This Article] proposes to broaden the debate over jurisdiction stripping to include a consideration of the constitutional significance of the Court's required "supremacy." Beginning with the text of Articles I and III, [the Article] notes the requirement that any federal courts that Congress creates must remain "inferior" to the one Supreme Court that the Constitution itself requires. [It] shows that the framers of the Constitution were likely to have understood the required relationship of supremacy and inferiority to entail a power in the Supreme Court to supervise lower courts through the issuance of the supervisory writs of mandamus, prohibition, and habeas corpus. Building on this supervisory understanding of the Court's supremacy, [the Article] reviews the historical and doctrinal case for a constitutional power of supervision. Finding broad support for such a power in the adoption and interpretation of the statutory precursors of the modern All Writs Act, [it] concludes that Congress may not place the work of lower federal courts beyond the supervisory authority of the Court.

Abstract:
In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as "implicit in the constitutional design." Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union.

This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ's jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court's decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court's rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland.

The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ's evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.

Abstract:
In a series of cases beginning with Francovich v. Italy, the European Court of Justice has recognized that individuals have a right to sue member states in their own courts for violation of the treaties that create the European Community. The most recent decision in that line, Köbler v. Austria, extends this right to individuals who claim that the member state's highest court wrongly applied European law. The Köbler decision continues a trend toward expanded member state liability that looks relatively adventuresome both in terms of European law (which makes no explicit provision for such suits) and when compared to the situation in the United States, where the Supreme Court has developed a judge-made body of sovereign immunity law that protects the member states from many individual suits.

This article examines the way the high courts of Europe and the United States approach the task of securing member state compliance with higher law. Despite many differences, the article finds that a theme of expositional supremacy helps to explain the approach of both bodies. Although the Supreme Court has been reluctant to approve direct suits against member states, it oversees a system of federal remedies that provides a number of entry points for litigants who wish to question the constitutionality of state action. European Community law, by contrast, provides fewer opportunities for individuals to challenge member state action and no opportunity for the ECJ to review member state court decisions directly by way of appeal. Viewed in the context of a relatively weak set of alternative remedies, the Köbler decision encourages member state courts to facilitate ECJ review through the preliminary reference procedure. In the end, member state liability may thus help to secure a place for the ECJ comparable to that of the Supreme Court in expounding the meaning of higher law.

Abstract:
The perennial debate over jurisdiction stripping has taken on new life in the last several months. The House of Representatives has adopted legislation that proposes to restrict the authority of the federal courts (both Supreme and inferior) over certain federal constitutional claims. In addition to providing the state courts with final authority to pass on constitutional issues, certain of the bills would free the state courts from the precedential effect of federal decisional law. One of the bills would threaten federal judges with impeachment if they exercise jurisdiction denied them by the legislation.

In assessing the constitutionality of this legislation, this Essay examines the relationship between state courts and the federal judiciary. Congress has a good deal of control over the relationship: it can create lower federal courts to hear Article III business, or it can leave these matters to the state courts and provide for appellate review in the federal judiciary. But can Congress assign matters exclusively to the state courts and foreclose appellate review entirely? Attempts to answer that question have focused on the Madisonian compromise (and its provision for congressional control over the jurisdiction of the lower federal courts); on the Appellate Jurisdiction Clause, with its provision for the creation of exceptions to, and regulations of, the Supreme Court's appellate jurisdiction; and on other provisions in Article III.

This Essay broadens the discussion to include the provision in Article I, Section 8 that empowers Congress to "constitute tribunals inferior to the Supreme Court." Building on the text, history and structure of this provision, the Essay contends that when Congress confers exclusive jurisdiction on the state courts, it should be seen as constituting them as inferior tribunals within the meaning of Article I. All inferior tribunals (including state courts, Article I tribunals and lower federal courts) must obey Supreme Court precedents and be subject to the Court's oversight and control. While Congress can regulate the Court's appellate jurisdiction, it cannot free inferior state tribunals from their subordinate relationship to the Court. The Essay concludes that legislation proposing to invest state courts with unreviewable authority over issues of federal law would violate the inferiority requirement.

Abstract:
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown up around the famous decision.

constitutional torts, Bivens, individual rights

Abstract:
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under section 1983 - the statutory predicate for constitutional tort claims against state actors-the Bivens action has a hit or miss quality that may reflect lingering doubts about the legitimacy of the Court's role.

This Essay argues that the Court should abandon its case-by-case approach in favor of routine recognition of Bivens claims. In 1974 and more clearly in the Westfall Act of 1988, Congress adopted amendments to the Federal Tort Claims Act that assume the availability of suits against federal officers for "violations of the Constitution." Congress's decision to ratify and preserve the Bivens action provides a legislative foundation for such claims that answers longstanding questions of legitimacy.

After tracing the history of the Westfall Act, the Essay explores the doctrinal implications of the proposed switch to a routinely available Bivens action. Rather than advocating a dramatic break with the past, the Essay proposes to harmonize cases in the Bivens line with certain doctrines that shape the availability of remedies under section 1983. The resulting body of law will provide a more coherent Bivens framework and will ensure that constitutional rights apply with equal force to the interactions between individuals and officials at all levels of our federal government.

Bivens, right of action, constitutional adjudication

Abstract:
The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and the relative success of political movements in particular states and regions of the country. If states do not invariably produce progressive social legislation, why then should progressives like Justice Brandeis defend state sovereignty? This Essay suggests that the answer may lie in what it calls the infrastructure of federalism, a series of doctrines that ensure the binding effect of state law in our federal system of interstate litigation. By ensuring the binding effect of state law, the infrastructure of federalism both ensures that state legislatures remain relevant as centers of policymaking and serves to encourage interstate forum shopping. Forum shopping, in turn, may tend to advance the interests of plaintiffs in litigation outcomes. While improving plaintiff win rates does not directly advance progressive social values, forum shopping does tend to ensure that firms operating throughout the nation must comply with relatively more pro-consumer policies at the state level.

federalism, forum shopping

Abstract:
Although the Supreme Court has yet to define precisely how far Congress may go in conferring protective jurisdiction on the federal courts, recent decisions cast some doubt on the viability of this expansive conception of federal jurisdiction. At the same time, Congress has shown a renewed interest in the use of minimal diversity jurisdiction as a tool of jurisdictional expansion. Both in the Multi-party, Multiforum Trial Jurisdiction Act of 2002 and in the Class Action Fairness Act of 2005, Congress treated the existence of any minimal diversity of citizenship between opposing plaintiffs and defendants as a jurisdictional predicate for shifting complex, multi-party litigation into the federal court system. Most observers presume that the Court will uphold the constitutionality of these expansive uses of minimal diversity, based on such decisions as State Farm v. Tashire, 386 U.S. 523 (1967).

This Article identifies a tension between the Court's reluctance to embrace protective jurisdiction and its presumptive willingness to approve the use of jurisdiction on the basis of minimal diversity. While the two jurisdictional constructs differ in theory, they can produce quite similar results in practice - they shift multi-party claims to federal court for resolution in accordance with state law. Thus, the Article shows that many of the testing cases of protective jurisdiction would easily satisfy a broad conception of minimal diversity and would thus challenge the notion that Article III imposes some sort of limit on how far Congress can go in expanding federal jurisdiction. The Article explores ways of reducing the tension, suggesting that the Court might revive limits on the breadth of minimal diversity or re-think its apparent hostility to protective jurisdiction.

Abstract:
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.

This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.

judicial compensation, limited jurisdiction

Abstract:
Scholars have in recent years raised a host of questions about Article III's provisions for judicial independence. In a provocative recent essay, Professors Sai Prakash and Steve Smith challenge the conventional view that federal judges may be removed from office only through the relatively cumbersome process of House impeachment followed by a trial in the Senate. Prakash and Smith base their argument against impeachment-and-removal exclusivity on the history of good behavior tenure and the role that courts played in adjudicating claims of misbehavior at common law. Prakash and Smith contend that this judicial mode of removing from office remains available for federal judges, something Congress may revive through the passage of appropriate legislation.

This Essay disputes the Prakash and Smith thesis. It shows that the English common law mode of removal from office through judicial proceedings had essentially disappeared by the time of the framing. Both in England, where the Act of Settlement of 1701 regulated judicial office, and in the newly independent states, constitutional documents almost invariably assigned the ouster of superior court judges to the legislative branch of government. The drafting and ratification debates reveal that the framers of the federal Constitution made a similar choice, providing a legislative mode of removing misbehaving judges and foreclosing alternative modes. In the end, the evidence sustains the conventional view that the Constitution permits the removal of federal judges only through the legislative process.