Wednesday, October 22, 2008

Judicial Compensation and the Definition of Judicial Power in the Early Republic

Northwestern Prof. Jim Pfander recently posted Judicial Compensation and the Definition of Judicial Power in the Early Republic on SSRN. Click the article name to download it.  The abstract follows:

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.

This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.


October 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2008

How to Read the Constitution

The Wall Street Journal has published an excerpt of Justice Clarence Thomas's remarks to the Manhattan Institute last Thursday.  The WSJ piece is titled "How to Read the Constitution."  Read the piece here.--Counseller   

October 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2008

Forum Shopping and the Infrastructure of Federalism

James E. Pfander discusses the advantages of plaintiff win rates through the process of forum shopping in Forum Shopping and the Infrastructure of Federalism posted on

October 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2008

Cert. Granted

Last November, I reported on the HIF Bio case from the Federal Circuit, concluding that "it wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that now a circuit split exists."  Today the Court granted the Cert. Petition.  Click here for the relevant links at SCOTUSBLOG.


October 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2008

En Banc 5th Circuit decides In Re: Volkswagen

Back in May, we reported on a In Re: Volkswagen of America.  The case involved a transfer-of-venue issue that was substantial enough to draw an amicus signed by 14 law professors  (neither of us signed).  The 5th Circuit released its en banc opinion on Friday.  Judge Jolly wrote for the 10-member majority, granting the petition for mandamus and ordering the district court to transfer the case.  Judge King wrote for the 7-member dissent.  --RR

October 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2008

Problems with Proposed Rule 56?

Prof. Adam Steinman recently posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process. The abstract follows:

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.


October 9, 2008 | Permalink | Comments (0) | TrackBack (0)