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Abstract:
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.

This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the enclave theory advanced in the context of substantive common law: the constitutional structure preempts the state's ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III's grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.

Abstract:
The Supreme Court has long given its cases interpreting statutes special protection from overruling. Two rationales exist for this practice. One line of thought interprets congressional silence following the Supreme Court's interpretation of a statute as approval of that interpretation. According to this way of thinking, a refusal to overrule statutory precedent is a refusal to veer from an interpretation that Congress has effectively approved. Another line of thought emphasizes that statutory interpretation inevitably involves policymaking, and that policymaking is an aspect of legislative, rather than judicial, power. According to this second way of thinking, the Supreme Court should refuse to revisit its statutory interpretations as a means of encouraging Congress (and other interested parties) to use the democratic rather than the judicial process to resolve the policy questions that lie at the heart of interpretive disputes.

A robust literature exists debating the wisdom of the Supreme Court's statutory stare decisis doctrine. That robust literature, however, has wholly overlooked a curious aspect of super-strong statutory stare decisis: the courts of appeals have adopted it too. Scholars of statutory interpretation have not noticed the appearance of this doctrine in the lower courts, and the logic of its presence there is not immediately apparent. In this Article, I explore whether statutory stare decisis is an example of an interpretive practice in which the Supreme Court and the lower courts should diverge. I argue that in the courts of appeals, as in the Supreme Court, the theory emphasizing the connection between statutory stare decisis and the separation of powers provides far more credible support for the doctrine than does a theory of congressional acquiescence. Nevertheless, even the separation-of-powers theory does not justify super-strong statutory stare decisis in the courts of appeals. To the extent that statutory stare decisis operates as a restraint on judicial policymaking, it does so based on assumptions about how Congress will react to the Supreme Court. It is both impractical and inconsistent with the system of appellate review that Congress has designed for the inferior courts to assume that Congress will respond to them in the same way. Whatever the merits of statutory stare decisis in the Supreme Court, I conclude that the inferior courts have no sound basis for following the Supreme Court's practice.

stare decisis, statutory interpretation, federal courts, legislative supremacy

Abstract:
In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis often functions inflexibly in the federal courts, particularly in the courts of appeals. I claim that in its rigid application - when it effectively forecloses a litigant from meaningfully urging error - correction - stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules - like, for example, the rule that one appellate panel cannot overrule another - that create nearly insurmountable barriers to error - correction.

stare decisis, precedent, preclusion, due process, estoppel

Abstract:
The Catholic Church's opposition to the death penalty places Catholic judges in a moral and legal bind. While these judges are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty, they are also obliged to adhere to their church's teaching on moral matters. Although the legal system has a solution for this dilemma by allowing the recusal of judges whose convictions keep them from doing their job, Catholic judges will want to sit whenever possible without acting immorally. However, litigants and the general public are entitled to impartial justice, which may be something a judge who is heedful of ecclesiastical pronouncements cannot dispense. Therefore, the authors argue, we need to know whether judges are legally disqualified from hearing cases that their consciences would let them decide. While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.

capital punishment, Catholic church, Catholic judges, judicial obligations, capital crimes, professional ethics and responsibility, moral obligations, federal judges, capital sentencing, federal recusal statute, Catholic teaching

Abstract:
This essay is as an introduction to a symposium on stare decisis and nonjudicial actors. It frames the questions explored in the symposium by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and historically, they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought to overrule the Court by statute or constitutional amendment. They have sought overruling in the Court itself. They have tried to discipline the Court through jurisdictional limitations or onerous procedural regulation. And they have pressured the Court by appealing to public opinion. Some of these means, like constitutional override of a disfavored opinion, are generally consistent with notion that Supreme Court precedent is the law of the land. Others, like interfering with the enforcement of a Supreme Court judgment, represent a head-on challenge to the Court's authority. This essay describes some notable examples of each of these kinds of protest, noting, along the way, the problems posed by each.

Abstract:
Relying on something it calls "supervisory power" or "supervisory authority," the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court's exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III's grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. When the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. More than a reference to every court's inherent authority, therefore, is required to justify the Court's action. If the Supreme Court possesses a unique ability to regulate federal court procedure, it must be because of some unique attribute of the Supreme Court. This Article explores a justification that may well animate the Court's assertions of supervisory power: the notion that the Court possesses supervisory power by virtue of its constitutional supremacy. Analyzing this justification requires pursuit of two questions that are wholly unexplored in the literature and case law. Does Article III's distinction between supreme and inferior courts operate only as a limit on the way that Congress can structure the judicial department, or does it also operate as a source of inherent authority for the Supreme Court? And assuming that the Court's supremacy grants it inherent authority over inferior courts, is supervisory power over procedure part of the authority granted?

supreme court, inferior court, supervisory power, rulemaking, supreme, inferior