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Abstract:
Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to hear and decide such cases.

The executive's recent invocation of the privilege raises a concern that has been largely overlooked thus far - the impact of the privilege on legislative power to assign jurisdiction to the federal courts. The U.S. Constitution grants to Congress, and not the President, near-plenary authority to craft federal jurisdiction. Furthermore, when Congress assigns federal courts to hear cases challenging the legality of executive action, it is enlisting the judiciary as its partner in policing executive conduct. The executive's recent use of the privilege disrupts that constitutional collaboration, leaving the executive potentially unchecked by any branch of government. The Essay then discusses how courts should incorporate the concern for legislative power and executive oversight into its analysis of the state secrets privilege. It concludes by suggesting that courts refuse to dismiss these cases until Congress has indicated a willingness to take back the task of executive oversight that it had delegated to the courts through the original jurisdictional grant.

state secrets privilege, separation of powers, jurisdiction, federal courts, Article III

Abstract:
As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts now use abstention and certification to obtain answers about the meaning of state law from state courts. If Congress chooses to resolve the ambiguity by amending the law in accordance with Article I's bicameralism and presidential presentment requirements, then the court can apply the new law to the current case. If Congress chooses not to act, the court is no worse off than before. Indeed, congressional silence frees judges to be more creative in their responses to statutory ambiguity because they arguably have greater leeway to fill gaps or reconcile inconsistencies in an unclear statutory text that Congress has chosen not to fix. At the very least, judges insulate themselves from charges of judicial activism if they seek congressional input before attempting to interpret unclear statutes.

The article begins by considering whether certifying questions to Congress would be constitutional, and then examines whether adoption of such a practice would be wise. The discussion of both issues is informed by the fact that Congress regularly takes notice of judicial confusion and then acts to amend problem legislation, often explicitly stating an intention to affect the results in pending cases. Considering that Congress is already assisting courts by amending the statutory language at issue in pending cases - albeit in an informal and ad hoc way, this article concludes that it is worthwhile to formalize the process and encourage Congress to play an even greater role in resolving statutory ambiguity before an appellate court issues a definitive ruling.

certify, separation of powers, statutory interpretation, judicial review, abstention

Abstract:
The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding Justice Scalia's refusal to recuse himself from Cheney v. United States District Court for the District of Columbia. The history of recusal law reveals that each time Congress amends the recusal statutes to expand their scope, judges interpret the legal standards narrowly to avoid disqualification. This article contends that the recusal statutes are ineffective not because the substantive standards for recusal are too limited, but rather because the recusal process operates outside of the traditional adjudicatory model. For example, the very judge whose impartiality is being questioned is expected to raise and decide the question whether his or her own conduct creates the appearance of impartiality, and often makes that decision without issuing any explanation for it. Drawing on the literature locating the judiciary's legitimacy in traditional forms of adjudication, this article suggests that recusal law will only serve its purpose of protecting the judiciary's reputation if it incorporates these core procedural tenets of adjudication into the recusal decision. Specifically, the article proposes procedural reforms such as encouraging an adversarial presentation of the recusal question to an impartial judge who must issue a reasoned decision that will provide guidance for judges in future cases.

Recusal, disqualification, judicial ethics

Abstract:
Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for the creation of specialized federal courts. Most visibly, harmonizing interpretation of federal law has become an essential factor in the Supreme Court's selection of cases for review; 70% of the Supreme Court's docket is devoted to resolving disagreements over the meaning of federal law.

This Article questions whether uniformity in and of itself has inherent value, and whether the benefits of eliminating moderate disuniformity in the interpretation of ambiguous federal statutes are worth the costs. Proponents of uniformity claim that divergent interpretations of federal law are unfair to litigants, undermine the legitimacy of federal law, create intolerable conflicts for interstate actors, and lead to forum shopping. The Article explores each argument in turn and finds none to be a compelling reason for federal courts to devote considerable time and resources to maintaining uniformity. For instance, litigants have no basis to claim they were treated unfairly when courts reach different conclusions about the meaning of an ambiguous statute as long as each interpretation is reasonable. Nor is the legitimacy of federal law called into question when judges disagree about the best way to fill gaps or resolve vague provisions in the statutes they construe. Indeed, the doctrine of Chevron deference recognizes, and even promotes, the possibility that ambiguous federal statutes can be construed in a variety of ways. Interstate actors are already forced to comply with the varied legal regimes of the fifty states, so requiring them to follow divergent interpretations of federal law is not a significant additional burden. And if forum shopping is truly a problem (which is questionable), a better solution might be to tighten venue rules rather than expend significant federal judicial resources on standardizing federal law.

Furthermore, even in the relatively rare cases when uniformity is essential, the federal courts are not the ideal institution to provide it. Congress is responsible for enacting ambiguous laws that produce conflicting judicial interpretations, and Congress is better situated to determine when the benefits of uniformity outweigh the costs of achieving it. Accordingly, this Article contends that courts should avoid expending resources to standardize federal law, and should instead rely on Congress to legislate uniformity when needed.

federal courts, jurisdiction, uniformity, statutory interpretation, supreme court, certiorari