CASS R. SUNSTEIN, Harvard University - Harvard Law School
Email: csunstei@law.harvard.edu

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of "panic" that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent - low, but not so low as to suggest that federal courts have applied a broad rule of deference to government action. Second, the division between Republican and Democratic appointees is comparable to what is found in other areas of the law; contrary to reasonable expectations, there is no significant "compression" of ideological divisions in this domain. Third, and perhaps most strikingly, no panel effects are apparent here. Unlike in the vast majority of other areas, Republican and Democratic appointees do not appear to vote differently if they are sitting with Republican or Democratic appointees. Finally, judicial behavior cannot be shown to have changed over time. The invalidation rate is not higher in recent years than it was in the years immediately following the 9/11 attacks. Explanations are ventured for these various findings, with particular reference to the absence of discernible panel effects.

CHAD M. OLDFATHER, Marquette University - Law School
Email: chad.oldfather@marquette.edu

This is the initial draft of a set of course materials for a seminar entitled Judging and the Judicial Process. The focus of the course is on courts as institutions and on judges as the primary actors within those institutions. In their present incarnation, the materials open by outlining what one might call the standard model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. It then works through a series of critiques of that model, including the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Much of the remainder of the class is devoted to considering the various procedural constraints that work to ensure judicial accountability. These include judicial opinions, the doctrine of precedent, and the rest of Karl Llewellyn's major steadying factors. These materials also consider judicial activism and judicial independence, the relative merits of specialized versus generalist judges, the continued existence of nonlawyer judges, judicial ethics, and judicial selection at both the federal and state levels. Future versions will include sections on discretion, deference, managerial/bureaucratic judging, and the inherent powers of courts.

These materials are a work in progress, and are surely incomplete in important respects. I welcome all feedback concerning how they might be improved.

HERBERT J. HOVENKAMP, University of Iowa - College of Law
Email: herbert-hovenkamp@uiowa.edu

This historical overview examines the relationship between antitrust policy and intellectual property in the United States since 1890. Over most of this history, judges imagined far greater conflicts between antitrust policy and intellectual property rights than actually existed, or else relied on sweeping generalizations rather than close analysis. For example, they often assumed that the presence of an intellectual property right led to anticompetitive effects where there was no basis for finding any injury to competition at all. At the other extreme, they often concluded that an intellectual property right immunized seriously anticompetitive conduct even when the intellectual property statute at issue did not authorize the challenged practice. True conflicts between antitrust and intellectual property rights are relatively rare.

MITRA EBADOLAHI, New York University - School of Law
Email: mitra@nyu.edu

In 1996, South Africa's transformative Constitution inspired human rights activists worldwide by incorporating justiciable economic and social rights (ESRs), including rights to housing, health care, food, water, social security, and basic education. Yet over the past twelve years, problems related to separation of powers considerations, vagueness concerns, and enforcement costs have impeded the South African judiciary's efforts to enforce these crucial rights meaningfully. After surveying these obstacles, this Note offers a two-step proposal for change: increased use of the structural interdict remedy and an enhanced, collaborative role for the South African Human Rights Commission. Used in tandem, these measures can improve judicial enforcement of ESRs in South Africa -- and perhaps set a concrete example for the rest of the world.

JEFFREY A. PARNESS, Northern Illinois University - College of Law
Email: jparness@niu.edu

Can civil litigants enforce settlements resolving their actions before the very trial judges who presided over those actions? And, are such same case enforcements always subject to similar guidelines in federal and state trial courts? This short paper answers these questions, responding not always and no.

The paper employs Director of Insurance v. A and A Midwest Rebuilders, Inc., 891 N.E.2d 500 (Ill.App.2d 2008) to explore the limits of same case enforcement authority and the differences in federal and state practices. The state appellate court correctly distinguished federal court precedents that focused on distinctions between dismissals with and without prejudice. It instead looked to distinctions between judgment enforcement and judgment modification.

Unfortunately, the court in A and A also sanctioned same case enforcement where the earlier dismissal was made "pursuant to the terms" of a settlement that was not made part of the record. While relying on Lynch v. Samatamason Inc., 279 F.3d 487 (7th Cir. 2002), the Illinois state court did not follow the "standard practice" suggested in Lynch. Under Lynch, upon settlement subject to possible same case enforcement, the trial judge normally should call in the court reporter and dictate the terms of an oral agreement, or should place a written agreement on the record. As well, the judge should make sure all parties consent. Further, the court in A and A failed to address the public record nature of some civil case settlements, discussed in Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002), cited by the A and A court.

Not all civil case settlements are subject to same case enforcement. Final judgments should clearly reflect when settlement enforcement jurisdiction is retained. When same case enforcement is possible, trial judges should follow public access limits imposed by both First Amendment and common law decisions. Further, judges and lawyers should recognize that settlement enforcement guidelines may differ in federal and state courts.

A. SCOTT LOVELESS, Brigham Young University - J. Reuben Clark Law School
Email: lovelessas@lawgate.byu.edu

On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.

HILLEL Y. LEVIN, University of Georgia Law School
Email: hlevin@uga.edu

Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;
* When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;
* Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;
* Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred;
* The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.

MICHAEL H. LEROY, University of Illinois College of Law
Email: m-leroy@uiuc.edu

Judicial review of arbitration awards is highly deferential- but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by requiring employees to arbitrate their claims? Judicial review of awards based on statutory claims is inadequate, and undermines the constitutional role of federal courts.

I explore these empirical findings from a historical perspective. English kings and merchants helped to fashion modern arbitration. Nearly 700 years ago, small merchants traded goods at fairs that operated under a royal franchise. Arbitrators improved the efficiency of these markets by adjudicating transactional disputes. This role was codified by the Statute of the Staple of 1353, where the king delegated his sovereign power to ensure the success of the fair.

I point to two prominent junctures - in 1698, and again in 1925 - when lawmakers in England and the U.S. believed that court litigation hampered commerce. They enacted similar statutes to authorize courts to confirm disputed awards, unless these private rulings resulted from corruption or misconduct. This deference grew out of practical considerations. The parties had chosen the arbitrator, agreed to the private process, and bound themselves to an industry norm.

Courts deferred so heavily to awards because William III wanted these merchant tribunals to be autonomous. His law, the 1698 Arbitration Act, did not allow courts to vacate awards for fact finding or legal errors. Great deference in its reviewing standards reflected the king's infallibility.

My textual research shows that the FAA's reviewing standards descended from William III. I suggest that our law crowns today's statutory arbitrator with the king's mantle of infallibility. But this deference is too extreme for awards that rule on statutory claims. In Gilmer v. Johnson/Interstate Lane Corp., the Supreme Court ignored the commercial history of arbitration when it broadly approved a theory of forum substitution. Gilmer said that arbitrators may decide statutory claims, even if one disputant objects to the forum and wishes, instead, to be heard by a court. The result is that the ruling of the arbitrator is subject to a narrower standard for review than an Article III judge's order. Epitomizing this regal deference, a contemporary court said: "The arbiter was chosen to be the Judge. That Judge has spoken. There it ends." In textual and empirical analysis, I show that statutory arbitrations enjoy a presumption of royal infallibility. I conclude with two solutions for aligning the review of rulings by statutory arbitrators and Article III judges.