Checks and Balances: Congress and the Federal Court

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court\u27s status and power. The term life tenure is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of law in the other federal courts for which the Court and Congress share responsibility. Fixing the superannuation problem will not fix everything, but it would be a benign step in the right direction. I will conclude by suggesting numerous related reforms that might help more, all of which have been proposed to Congress in times past. Perhaps legislation addressing the superannuation problem would make it more likely that other needed reforms might be achieved in the future, by Congress or by a judiciary more aware of its own frailties

A Critical Assessment of the Cultural and Institutional Roles of Appellate Courts (Review Essay)

Reviewing, Daniel Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel (2d ed. 2006

Law and Transnational Corruption: The Need for Lincoln’s Law Abroad?

Unless and until means can be devised to deter bribery in impecunious nations, globalization can be of scant benefit to most of the people of those nations, for they are destined to be governed weakly, if at all, and to serve as havens here or there for all sorts of gangsters and terrorists. One need not be a humanitarian to take the transnational corruption problem seriously. This essay responds to that concern. It considers some possible reforms of international law that might serve to deter the corruption of weak governments. All its suggestions entail the use of the American practice of private enforcement of public law, a system that minimizes dependence on public officials who are subject to capture by wealthy outsiders. Privatized law enforcement in the American tradition generally threatens legal consequences on harmful practices ex post rather than preventing harmful practices ex ante. It offers the advantage to Business of greater freedom in the conduct of transactions. But its many costs result in resistance by many businessmen in the United States against whom law is often privately enforced and by wise lawyers of other lands blessed with public institutions that can be and are trusted to enforce public law. The relevance of the American practice of privatized law enforcement to the corruption problem results from the historical fact that it is a product of a nineteenth-century culture sharing very limited trust in government and its officers. Its cultural situation thus bears some resemblance to the situations both in impoverished lands and in the community of nations hoping for enforcement of international law prohibiting corrupt practices. It is a system of law enforcement that reduces the law\u27s dependence on the integrity of judges, prosecutors, and other public servants. Wherever public integrity is in great doubt, the American experience may offer useful instruction

Public Funding of Judicial Campaigns: The North Carolina Experience and the Activism of the Supreme Court

In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has continued for almost two centuries, but has encountered new impediments over the last half century and especially in the last decade, largely as a result of decisions of the Supreme Court of the United States extending the meaning and application of the First Amendment to the Constitution of the United States far beyond the expectations of those who wrote or ratified it, or many who have since proclaimed its virtue and importance. Part I focuses on the nineteenth century development of state judicial elections as a means to solve corruption and create judicial independence, specifically highlighting the developments in North Carolina. Part II discusses the progressive reforms of judicial elections that occurred in some, but not all, states during the twentieth century. Part III discusses the enduring problems of judicial elections and how those problems have been magnified by national politics and Supreme Court rulings during the past half-century. Part IV reviews North Carolina’s legislation, which attempts to ensure independence in a system of judicial elections. Lastly, Part V discusses the problems that are left unaddressed by the North Carolina legislation and proposes additional reform. The Article concludes that reasonable citizens of North Carolina have no choice but to recognize that the Court’s “activist” decisions have rendered unworkable the provisions of their state constitution governing the election of judges, even while demonstrating the case for a political system holding high court judges accountable for their political decisions