Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III
Posted: 20 Jun 2000 Last revised: 29 Aug 2014
Date Written: 2000
This article examines two interrelated developments over the course of the twentieth century: 1) how and why federal trial judges came to reorient the processes of judging and, in essence, to redefine their jobs by adding the management and settlement of civil cases to their judicial roles and identifying such work as definitional of "good judging;" and 2) the creation of the corporate persona of the federal judiciary and the programs it has championed, including a) the shift over the century towards promotion of the use of increasing numbers of non-Article III decisionmakers (magistrate and bankruptcy judges) within the Article III judiciary, but hierarchically inferior to Article III judges, and b) the evolution of the view that the Article III judiciary, qua judiciary, should take positions about pending, proposed legislative grants of jurisdiction to the federal courts. Thereafter, the article analyzes the implications of the judiciary's programmatic achievements and its constitutional decisions by reevaluating Article III, both in terms of its grants of life tenure to individual judges and in terms of its conception of the judiciary as a branch of government. In light of constitutional allocations of power, the article proposes revisiting the "programmatic judiciary" that has emerged and creating innovative forms of bureaucracies, reflective of the particular and peculiar status of the federal judiciary.
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