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How to Rig the Federal Courts

58 Pages Posted: 30 Mar 2010 Last revised: 4 Aug 2011

David S. Law

Washington University in St. Louis - School of Law; The University of Hong Kong - Faculty of Law; Washington University in St. Louis - Department of Political Science

Date Written: January 29, 2011

Abstract

The organizational structure of a judicial system has systematic implications for the ideological slant of judicial policymaking. These implications are, however, rarely discussed and poorly understood. This Article uses the prospect of court-rigging to illustrate both the impact of institutional design on judicial policymaking and the perils of taking institutional design for granted.

Political leaders often pursue a form of entrenchment by attempting to imbue the courts with an enduring ideological bias. But the most familiar strategies for achieving this type of entrenchment - namely, court-packing and gerrymandering - are doomed to enjoy only limited success in the context of the Federal Judiciary. Comparative analysis of the judiciary’s organizational structure, by contrast, highlights the existence of design vulnerabilities that could be exploited to greater effect. Examination of the Japanese judiciary in particular suggests that a more effective strategy would be to restructure the federal courts by delegating power over sensitive policy and personnel decisions to ideologically reliable, self-replicating agents who are insulated from the effects of regime change.

Unlike conventional court-packing strategies, this approach can be implemented in ways that are not merely consistent with the requirements of Article III, but that actually exploit those very requirements for even greater effect. Specific implementation mechanisms discussed in this Article include the creation of a new intermediate appellate court with the ability to select its own members; the introduction of procedural rules that would effectively restrict the Supreme Court’s appellate docket; and a comprehensive overhaul of the law clerk system that would forge the clerks into a collective body, establish their independence from the judges whom they nominally serve, and subject them to a combination of bureaucratic supervision and oversight by the legal academy.

Keywords: judicial behavior, institutional design, law clerks, national court of appeals, Japan, Japanese judiciary, court-rigging, Rule of Four, entrenchment, judicial ideology, judicial appointments, court-packing, gerrymandering

JEL Classification: K00, K40

Suggested Citation

Law, David S., How to Rig the Federal Courts (January 29, 2011). Georgetown Law Journal, Vol. 99, p. 779, 2011; Washington U. School of Law Working Paper No. 10-03-04. Available at SSRN: https://ssrn.com/abstract=1578403

David S. Law (Contact Author)

Washington University in St. Louis - School of Law ( email )

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Campus Box 1120
St. Louis, MO 63130
United States
314-266-9698 (Phone)
314-935-5356 (Fax)

HOME PAGE: http://www.davidlaw.ca

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

Washington University in St. Louis - Department of Political Science ( email )

One Brookings Drive
One Brookings Drive
St. Louis, MO 63130
United States

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