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Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional

Penelope J. Pether

Villanova University School of Law (deceased)

October 28, 2009

William & Mary Bill of Rights, Vol. 17, 2009
Villanova Law/Public Policy Research Paper No. 2010-05

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.

Number of Pages in PDF File: 82

Keywords: Article III, Federal Courts, adjudicatory practices, non-delegation, “fundamental interests”, separation of powers, judicial power, judicial duty, “post 9/11 constitutionalism”, nonprecedential status rules

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Date posted: October 29, 2009  

Suggested Citation

Pether, Penelope J., Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional (October 28, 2009). William & Mary Bill of Rights, Vol. 17, 2009; Villanova Law/Public Policy Research Paper No. 2010-05. Available at SSRN: http://ssrn.com/abstract=1495831

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Penelope Pether (Contact Author)
Villanova University School of Law (deceased)
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