Judges and Their Papers

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the Justices of the U.S. Supreme Court and other federal judges own their working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues such as abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the fiftieth anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded.? In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand, to the judiciary’s independence, collegiality, confidentiality, and integrity on the other.? This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the thirty-fifth anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property—just as presidential papers are. Although there are important differences between the roles of president and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather than counseling in favor of private ownership, the unique position of federal judges, including the judiciary’s independence in our constitutional design, suggests the advisability of crafting rules that speak to reasonable access to and disposition of judicial papers.? Ultimately, this Article—giving renewed attention to a long-forgotten 1977 governmental study commissioned by Congress—argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality, confidentiality, and integrity

Rulemaking as Legislating

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional. Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative law if the Supreme Court jettisoned the central premise of the nondelegation doctrine and frankly admitted that agency rulemaking constitutes an exercise of delegated legislative power. Specifically, this Article analyzes administrative law’s most central doctrines—including the test used to define legislative rules, Chevron and Auer deference, arbitrary and capricious review, procedural due process, and procedural constraints on agency rulemaking—and considers whether these doctrines stand in opposition to or work harmoniously with the nondelegation doctrine. Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines—consistent with the nondelegation octrine—refuse to view agency rulemaking through a legislative lens. Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable. Many of administrative law’s disparate doctrines would gain a more unified, coherent lens centered around legislative supremacy and congressional delegation, forcing courts to take more seriously the notion that agencies act as Congress’s delegate. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power

Constraining Certiorari Using Administrative Law Principles

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process. Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, another area of the law—one that already has thought long and hard about how to constrain delegated discretion—should be consulted: administrative law. Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns of accountability, transparency, and reasoned decisionmaking. Accordingly, in considering certiorari reform, it makes sense to borrow from some of administrative law’s well-developed lessons about how delegated discretion can be controlled. Specifically, after consulting the nondelegation doctrine, reason-giving requirements, public participation mechanisms, and oversight principles found in administrative law, this Article concludes that vote-disclosure requirements and increased public participation stand as promising ways of checking the Court’s currently unconstrained discretion

Constraining Certiorari Using Administrative Law Principles

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process. Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, another area of the law—one that already has thought long and hard about how to constrain delegated discretion—should be consulted: administrative law. Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns of accountability, transparency, and reasoned decisionmaking. Accordingly, in considering certiorari reform, it makes sense to borrow from some of administrative law’s well-developed lessons about how delegated discretion can be controlled. Specifically, after consulting the nondelegation doctrine, reason-giving requirements, public participation mechanisms, and oversight principles found in administrative law, this Article concludes that vote-disclosure requirements and increased public participation stand as promising ways of checking the Court’s currently unconstrained discretion

Adapting to Administrative Law\u27s \u3ci\u3eErie\u3c/i\u3e Doctrine

This Article looks to the federalism context and draws on the federal courts\u27 experience adapting to the Court\u27s landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court\u27s Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts faced the task of applying ambiguous state law that they could not authoritatively construe. To try to resolve this dilemma, various mechanisms, including abstention and state certification procedures, emerged to enable federal courts to seek out a state\u27s views on an unresolved issue of law before ruling on the issue. The federal courts and state courts, in other words, sought to cooperate and to interact with each other rather than simply passing like ships in the night. This Article proceeds in five parts. Part I describes the two polar models the courts currently use when allocating interpretive power: Chevron\u27s deferential model, which hands interpretive power over to the relevant agency, and the independent judgment model, which leaves statutory interpretation in the hands of the courts. Part II describes the state of the law prior to Brand X in terms of the relationship between these two competing models and principles of stare decisis. Part II then explains how Brand X broke away from prior Supreme Court precedent by-for the first time ever-expressly sanctioning the notion that a Chevron-eligible agency can overrule a court\u27s own independent declaration of what the law means. Part IV proposes two concrete suggestions for how courts could move toward an interactive approach. First, drawing on an analogy to abstention and state certification procedures used in the federalism context, Part IV proposes that courts become increasingly willing to invite and consider agency views rather than blindly issuing a judicial construction of a statute that the agency has yet to construe. The primary jurisdiction doctrine, which allows courts to refer a matter back to the agency for its initial determination, could serve as one potential mechanism for soliciting agency views. The ability of the lower federal courts to invite agencies to file amicus curiae briefs, however, provides an even more promising mechanism for soliciting agency views. Second, Part IV also proposes that once courts solicit agency views by invoking the primary jurisdiction doctrine or inviting agency amicus briefs, the courts then must give due consideration to the agency\u27s views, even if they are set forth in a non-binding format that does not command Chevron deference. Finally, Part V considers potential objections to the interactive model proposed here. Objections addressed in Part V include: whether it is proper to fashion interpretive rules in order to minimize friction between the branches; whether the interactive approach would minimize agency incentives to engage in notice-and-comment rulemaking; whether an interactive approach would muddle the law of deference; and whether the interactive approach would represent an abdication of the courts\u27 role in the interpretive process by cutting courts out of the interpretive process and actually minimizing interaction between courts and agencies. This article concludes that these objections are not fatal and that it would be worthwhile to encourage courts and agencies to interact with each other in the wake of BrandX

Controlling Presidential Control

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality. Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the courts has been a reflexive form of “expertise forcing,” which simplistically views presidential influence as “bad” and technocratic decisionmaking as “good.” In narrowly focusing on the negative aspects of presidential control, expertise forcing overlooks key benefits that flow from presidential control—namely, political accountability and regulatory coherence. It also ignores the fact that presidential control is here to stay. A more realistic and nuanced response to presidential control is needed. After examining three different case studies and discussing the inadequacies of expertise forcing, this Article provides a roadmap for how a wide range of nonconstitutional administrative law doctrines could be coordinated to enhance the positive attributes and restrain the negative attributes of presidential control. The Article gives attention to doctrinal tools, such as judicial review doctrines and notice-and-comment procedures, falling into three general categories: statutorily facing rules; transparency-enhancing mechanisms; and process-forcing rules. If used in a coordinated fashion, doctrinal tools falling into each of these three categories provide a powerful and much-needed framework for responding to the new realities of presidential control and ultimately controlling— without unnecessarily constraining—presidential control

Regulatory Moratoria

Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time. As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states implemented some kind of executive-driven regulatory moratorium. In addition, beginning with President Reagan, all U.S. presidents other than George H.W. Bush have issued short-term regulatory moratoria immediately upon coming into office to facilitate review of midnight regulations passed by their predecessors. President Bush, who followed a member of his own party into the White House, instead implemented a one-year moratorium during his last year in office. This Article aims to situate regulatory moratoria within the existing literature on political control of the administrative state. The goal of this Article is largely descriptive: to provide the first overarching description of the emergence of and proposals for regulatory moratoria at both the federal and state levels and the different contexts in which regulatory moratoria have arisen. The Article also seeks to identify and analyze the major arguments for and against regulatory moratoria from both a legal and a policy perspective. In weighing the pros and cons of regulatory moratoria, this Article warns against the use of “hard” moratoria—defined as long-term moratoria often spanning a year or more. It also suggests, however, that “soft” moratoria—meaning short-term moratoria keyed to a brief period of political transition—might appropriately further notions of democratic accountability when used carefully by the executive branch following a change in administration to ensure that the regulatory machinery is aligned with the policies of those newly elected to power