Akhil Amar’s Unusable Past

A Review of The Words That Made Us: America’s Constitutional Conversation, 1760–1840. By Akhil Reed Amar

Sovereign Metaphors in Indian Law

This exploration reveals that tribes were not as anomalous as the Supreme Court of the United States has suggested. Even while the Court proclaimed the Tribes\u27 uniqueness, it readily applied doctrines developed in the context of foreign nations, states and U.S. territories to Native nations, ignoring the differences between the situation of tribes and other sovereigns. This narrative about what tribes lack when compared to other sovereigns has become a constant, and pernicious, trope within the discourse of Indian law

Empire States: The Coming of Dual Federalism

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns. In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements

Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of assuming senior status or retiring. The study’s findings include many matters either not previously observed or not previously established. Thus, for example, in addition to showing that resignations have been at historically low rates in recent decades, the authors were able to confirm a link between age at appointment and resignation. By calculating precise ratios of service in senior status to regular active service and gathering data on the work performed by judges in senior status, they were able to derive imputed workloads for judges in senior status. Responses to a questionnaire sent to all judges in senior status (with a return rate of 83%) permitted the authors to confirm that the two major influences on the decision to take senior status are the desire to help the judge\u27s court by creating a vacancy and the desire to take advantage of federal tax (FICA) savings. Those responses also confirm that, contrary to much of the political science literature, strategic partisan behavior plays only a very small role in these decisions. Although the responses to the senior status questionnaire suggest wide-spread satisfaction with senior status, they also provide evidence of substantial unhappiness about Congress\u27s failure to grant a salary increase since 1991 and its failure to provide annual cost-of-living adjustments (COLAs). Thus, numerous respondents stated that they were considering retirement or would have retired years ago if they had known then what they know now. The responses to a questionnaire that was sent to all retired judges (also with a return rate of 83%) confirm such unhappiness and demonstrate that financial considerations were the primary driver of retirements in the study period. Although the retirement rate increased only modestly over the four decades of the study, there are reasons to fear that retirements will increase, perhaps substantially, in coming decades. Indeed, in the two years after the end of the study period, there was a large increase in the number of judges retiring. A sustained substantial increase in retirements could undermine the system of service in senior status. The same is true if substantially more judges chose to remain in regular active service, and the authors therefore explore what has influenced judges to remain active for three years or more after eligibility to take senior status or retire. As expected, the primary influences are the desire to retain a judge\u27s previous role and status, whether manifested in a courtroom and courtroom staff or in participation in en banc review by the court of appeals. Data gathered for the study demonstrate possible adverse influences on judges assuming senior status, and they make it possible to locate current problem areas. In the concluding section of the study, the authors explore the policy implications of their research, focusing on the potential threat that retirements and decisions to remain in regular active service represent to senior status and the critically important role that senior status plays in enabling the federal judiciary to accomplish its work. The authors calculate the number of judgeships that would have to be created to do the work currently done by judges in senior status. They also provide a basis for calculating the costs and benefits of senior status. Although the authors recommend a number of steps that could reduce the threat of retirements, the preferred approach is for Congress to restore the ground lost to inflation by providing COLAs not conferred. Apart from financial measures, the authors also identify some non-financial disincentives to senior status that should be addressed, and they suggest reconsideration of the preference for decentralized decision making on matters of chambers, courtrooms and staff at a time when flexibility in deploying resources nationally is ever more important

Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of assuming senior status or retiring. The study’s findings include many matters either not previously observed or not previously established. Thus, for example, in addition to showing that resignations have been at historically low rates in recent decades, the authors were able to confirm a link between age at appointment and resignation. By calculating precise ratios of service in senior status to regular active service and gathering data on the work performed by judges in senior status, they were able to derive imputed workloads for judges in senior status. Responses to a questionnaire sent to all judges in senior status (with a return rate of 83%) permitted the authors to confirm that the two major influences on the decision to take senior status are the desire to help the judge\u27s court by creating a vacancy and the desire to take advantage of federal tax (FICA) savings. Those responses also confirm that, contrary to much of the political science literature, strategic partisan behavior plays only a very small role in these decisions. Although the responses to the senior status questionnaire suggest wide-spread satisfaction with senior status, they also provide evidence of substantial unhappiness about Congress\u27s failure to grant a salary increase since 1991 and its failure to provide annual cost-of-living adjustments (COLAs). Thus, numerous respondents stated that they were considering retirement or would have retired years ago if they had known then what they know now. The responses to a questionnaire that was sent to all retired judges (also with a return rate of 83%) confirm such unhappiness and demonstrate that financial considerations were the primary driver of retirements in the study period. Although the retirement rate increased only modestly over the four decades of the study, there are reasons to fear that retirements will increase, perhaps substantially, in coming decades. Indeed, in the two years after the end of the study period, there was a large increase in the number of judges retiring. A sustained substantial increase in retirements could undermine the system of service in senior status. The same is true if substantially more judges chose to remain in regular active service, and the authors therefore explore what has influenced judges to remain active for three years or more after eligibility to take senior status or retire. As expected, the primary influences are the desire to retain a judge\u27s previous role and status, whether manifested in a courtroom and courtroom staff or in participation in en banc review by the court of appeals. Data gathered for the study demonstrate possible adverse influences on judges assuming senior status, and they make it possible to locate current problem areas. In the concluding section of the study, the authors explore the policy implications of their research, focusing on the potential threat that retirements and decisions to remain in regular active service represent to senior status and the critically important role that senior status plays in enabling the federal judiciary to accomplish its work. The authors calculate the number of judgeships that would have to be created to do the work currently done by judges in senior status. They also provide a basis for calculating the costs and benefits of senior status. Although the authors recommend a number of steps that could reduce the threat of retirements, the preferred approach is for Congress to restore the ground lost to inflation by providing COLAs not conferred. Apart from financial measures, the authors also identify some non-financial disincentives to senior status that should be addressed, and they suggest reconsideration of the preference for decentralized decision making on matters of chambers, courtrooms and staff at a time when flexibility in deploying resources nationally is ever more important