DOCSLIB.ORG

An Inquiry Into Whether Congress Can and Should Strip the Supreme Court of Its Appellate Jurisdiction to Entertain Patent Cases

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
An Inquiry Into Whether Congress Can and Should Strip the Supreme Court of Its Appellate Jurisdiction to Entertain Patent Cases Chicago-Kent Law Review Volume 92 Issue 2 Cities in Crisis Article 13 10-30-2017 The Cessation of Innovation: An Inquiry into Whether Congress Can and Should Strip the Supreme Court of Its Appellate Jurisdiction to Entertain Patent Cases Catherine Taylor IIT Chicago-Kent College of Law Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Civil Procedure Commons, Intellectual Property Law Commons, Jurisdiction Commons, and the Supreme Court of the United States Commons Recommended Citation Catherine Taylor, The Cessation of Innovation: An Inquiry into Whether Congress Can and Should Strip the Supreme Court of Its Appellate Jurisdiction to Entertain Patent Cases, 92 Chi.-Kent L. Rev. 679 (2017). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss2/13 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 7+(&(66$7,212),1129$7,21$1,148,5<,172 :+(7+(5&21*5(66&$1$1'6+28/'675,37+(6835(0( &28572),76$33(//$7(-85,6',&7,2172(17(57$,1 3$7(17&$6(6 &$7+(5,1(7$</25 ,,1752'8&7,21 7KURXJKRXWWKHKLVWRU\RIWKH8QLWHG6WDWHV&RQJUHVVKDVDWWHPSWHG WROLPLWWKH6XSUHPH&RXUW¶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³>W@RSURPRWHWKHSURJUHVVRIVFLHQFHDQG XVHIXODUWVE\VHFXULQJIRUOLPLWHGWLPHVWRDXWKRUVDQGLQYHQWRUVWKHH[FOX %68QLYHUVLW\RI,OOLQRLV8UEDQD&KDPSDLJQ-'&DQGLGDWH&KLFDJR.HQW&ROOHJHRI /DZ,¶GOLNHWRWKDQNP\IDPLO\DQGDOOWKRVHZKRSURYLGHGPHZLWKYDOXDEOHIHHGEDFN See$OH[DQGHU.+RRSHUJurisdiction-Stripping: The Pledge Protection Act of 2004 +$59-/(*,6 VWDWLQJWKDWUHSUHVHQWDWLYHVLQWKHWK&RQJUHVVSURSRVHGMXULVGLF WLRQVWULSSLQJELOOVLQFOXGLQJDELOOWKDWZRXOGVWULSORZHUIHGHUDOFRXUWVRIVXEMHFWPDWWHUMXULVGLFWLRQ RYHU )LUVW $PHQGPHQW FKDOOHQJHV WR WKH3OHGJHRI $OOHJLDQFH DQGDELOOSUHFOXGLQJMXULVGLFWLRQRYHU FKDOOHQJHVWRWKH'HIHQVHRI0DUULDJH$FW 7DUD/HLJK*URYHThe Article II Safeguards of Federal Jurisdiction &2/80 / 5(9 GLVFXVVLQJ MXULVGLFWLRQVWULSSLQJ HIIRUWV GXULQJ WKH 5RRVHYHOW(LVHQKRZHU&DUWHUDQG5HDJDQDGPLQLVWUDWLRQV 7KHRGRUH-:HLPDQJurisdiction Strip- ping, Constitutional Supremacy, and the Implications of Ex Parte Young 8 3$ / 5(9 Q FLWLQJ(UZLQ&KHPHULQVN\Federal Jurisdiction § 3.1 WKHG ³>%@HWZHHQ DQGRYHUVL[W\ELOOVZHUHLQWURGXFHGLQWR&RQJUHVVWRUHVWULFWIHGHUDOFRXUWMXULVGLFWLRQRYHU SDUWLFXODUWRSLFV´ see also *HUDOG*XQWKHUCongressional Power to Curtail Federal Court Jurisdic- tion: An Opinionated Guide to the Ongoing Debate67$1/5(9 WKLUW\MXULVGLF WLRQVWULSSLQJELOOVZHUHLQWURGXFHGLQ&RQJUHVVEHWZHHQDQG See generally :HLPDQsupra QRWH 86&2167DUW,,,FO CHICAGO-KENT LAW REVIEW>9RO VLYHULJKWWRWKHLUUHVSHFWLYHZULWLQJVDQGGLVFRYHULHV´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³3DWHQW $WWRU QH\´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¶VOHJDODQDO\VLVDQGDSSOLFDWLRQPD\RYHUO\VLPSOLI\DFRPSOH[ LVVXHWKHUHE\OHDYLQJFRQIXVLQJSUHFHGHQWLQWKH6XSUHPH&RXUW¶VZDNH 86&2167DUW,FO &)5 863DWHQWDQG7UDGHPDUN2IILFHOffice of Enrollment and Discipline (OED)DW -XO\KWWSZZZXVSWRJRYVLWHVGHIDXOWILOHV2('B*5%SGI Do I Qualify to Sit for the Patent Bar Exam?3$7%$5KWWSSDWEDUFRPXVSWRSDWHQWEDU H[DPUHTXLUHPHQWVVKWPO ODVWYLVLWHG$SU &200(176 21 58/( 02'(/ 58/(6 2) 352)¶/ &21'8&7 QRWLQJWKDW5XOHDOVR UHFRJQL]HVWKDWD³ODZ\HUHQJDJHGLQ$GPLUDOW\SUDFWLFHPD\XVHWKHGHVLJQDWLRQµ$GPLUDOW\¶´DWWRU QH\VLQRWKHUILHOGVPD\RQO\VWDWHRULPSO\WKDWWKH\DUHVSHFLDOLVWVLIWZRFRQGLWLRQVDUHPHW See, e.g.(OFRPPHUFHFRP,QFY6$3$*)G )HG&LU ³:KLOH µWKH SHUVRQRIRUGLQDU\VNLOOLQWKHDUW¶LVDOHJDOFRQVWUXFWOLNHµWKHUHDVRQDEOHPDQ¶DQGFODLPFRQVWUXFWLRQ LVXOWLPDWHO\DPDWWHUIRUWKHMXGJHVLWFDQQRWEHDVVXPHGWKDWMXGJHVDUHSHUVRQVRIRUGLQDU\VNLOOLQDOO WHFKQRORJLFDODUWV´ 86& D See 'LDQH 3 :RRG Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases? &+,.(17 - ,17(// 3523 ³-XGJH +DQG¶V FRQFHUQV DERXW FRPSHWHQW KDQGOLQJRIVRSKLVWLFDWHGH[SHUWWHVWLPRQ\DUHMXVWDVVDOLHQWWRGD\DVWKH\ZHUHZKHQKHZURWHWKHVH ZRUGVWKDWWDVNKRZHYHULVQRPRUHRUOHVVGLIILFXOWLQSDWHQWFDVHVWKDQLWLVLQFRPSOH[HQYLURQPHQ WDOFDVHV)RRGDQG'UXJFDVHVDQWLWUXVWFDVHVRUPDQ\RWKHUV´ See &RRN'HHJDQDQG1LHKDXVAfter Myriad: Genetic Testing in the Wake of Recent Supreme Court Decisions about Gene Patents &855 *(1(7 0(' 5(3 KWWSVZZZQFELQOPQLKJRYSPFDUWLFOHV30& ³>7@KH ERXQGDULHV RI SDWHQWDEOH VXEMHFW PDWWHU DUH VWLOO IX]]\ 7KH 6XSUHPH &RXUW KDV XQDQLPRXVO\ UXOHGWKDWORZHUFRXUWVZHUHXSKROGLQJ 2017] CONGRESS AND PATENT CASES 681 In fact, as later explored by this note, the Supreme Court has recently been issuing opinions that have made it harder for an inventor to obtain a patent and easier for an accused infringer to invalidate a patent.13 This jeopardizes the strength of the American patent system, which in turn, di- rectly jeopardizes American scientific innovation.14 Patents are essential to the American economy because they encourage the proliferation of techno- logical advancement. Muddied patent jurisprudence hinders America’s competitiveness in the global market.15 Perhaps it is time for a more spe- cialized court to be the final arbiter of patent matters. This note aims to answer the following questions: 1) can Congress strip the Supreme Court’s appellate jurisdiction with respect to hearing patent appeals; and 2) should Congress strip this jurisdiction? More specif- ically, Part II of this note analyzes important Supreme Court cases that examine jurisdiction-stripping statutes before considering whether curtail- ing the Court’s jurisdiction from hearing patent cases would pass constitu- tional muster. This part also considers any ideological and policy concerns associated with this type of statute. Part III explores the importance of pa- tent law, and assesses recent Supreme Court patent law jurisprudence. The note then concludes in Part IV with a reflection on whether this recent precedent warrants a consideration of a jurisdiction-stripping statute. II. CONGRESS CAN STRIP APPELLATE JURISDICTION FROM THE SUPREME COURT Jurisdiction-stripping legislation is not novel.16 Throughout history, the Court has considered various statutes attempting to limit its jurisdiction. Many of these statutes have pertained to habeas corpus challenges, and the Court has frequently narrowed its ruling to the specific facts in each case. In order to synthesize the case law and apply their holdings to the patent world, it is important to examine some of these jurisdiction-limiting stat- patents claims they should not have upheld, but it has not indicated how to draw the line between methods and molecules that are patent-eligible and those that are not.”). 13. Robert R. Sachs, One Year Anniversary: The Aftermath of #ALICESTORM,BILSKI BLOG, FENWICK &WEST, (June 20, 2015), http://www.bilskiblog.com/blog/2015/06/the-one-year-anniversary- the-aftermath-of-alicestorm.html (“For example, in TC 1600, the biotech area, in January, 2012 6.81% of all actions issued (counting both office actions and notices of allowances) were office actions with §101 rejections; by May 2015 that percentage almost doubled to 11.86% of actions.”). 14. See generally William Hubbard, COMPETITIVE PATENT LAW, 65 FLA.L.REV. 341, 349 (2013). 15. See generally Neal Solomon, Connecting the Dots of a Weak Patent System and Productivity Growth Decline, IPWATCHDOG (Oct. 4, 2016), http://www.ipwatchdog.com/2016/10/04/weak-patent- system-productivity-growth-decline/id=73433/. 16. See e.g., Hooper, supra note 1 at 512. 682 CHICAGO-KENT LAW REVIEW [Vol 92:2 utes more in depth. This section first analyzes Supreme Court precedent;
Load more

Recommended publications
  • Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de­ tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu­ tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen.
    [Show full text]
  • Patchak V Zinke
    (Slip Opinion) OCTOBER TERM, 2017 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus PATCHAK v. ZINKE, SECRETARY OF THE INTERIOR, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 16–498. Argued November 7, 2017—Decided February 27, 2018 Petitioner David Patchak filed suit challenging the authority of the Secretary of the Interior to invoke the Indian Reorganization Act, 25 U. S. C. §5108, and take into trust a property (Bradley Property) on which respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians wished to build a casino. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U. S. 209 (Patchak I), this Court held that the Secretary lacked sovereign immunity and that Patchak had standing, and it remanded the case for further pro- ceedings. While the suit was back in District Court, Congress enact- ed the Gun Lake Act, 128 Stat. 1913, which “reaffirmed as trust land” the Bradley Property, §2(a), and provided that “an action . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed,” §2(b).
    [Show full text]
  • The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 Virginia Law Review
    Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2012 The onsC titutionality of Federal Jurisdiction- Stripping Legislation and the History of State Judicial Selection and Tenure Brian T. Fitzpatrick Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Constitutional Law Commons, Judges Commons, and the Jurisdiction Commons Recommended Citation Brian T. Fitzpatrick, The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 Virginia Law Review. 839 (2012) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/592 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,1 2 1/,1( Citation: 98 Va. L. Rev. 839 2012 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Jan 9 12:51:39 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-6601 Retrieved from DiscoverArchive, Vanderbilt University’s Institutional Repository Originally Published as Brian T. Fitzpatrick, The Constitutionality of Federal Jurisdiction-stripping Legislation and the History of State Judicial Selection and Tenure in 98 Va.
    [Show full text]
  • Jurisdiction Stripping Circa 2020: What the Dialogue (Still) Has to Teach Us
    MONAGHAN IN PRINTER FINAL (DO NOT DELETE) 9/16/2019 3:03 PM Duke Law Journal VOLUME 69 OCTOBER 2019 NUMBER 1 JURISDICTION STRIPPING CIRCA 2020: WHAT THE DIALOGUE (STILL) HAS TO TEACH US HENRY P. MONAGHAN† ABSTRACT Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020. TABLE OF CONTENTS Introduction ................................................................................................2 A. 1953 and Beyond ......................................................................2 B. The Dialogue: A Preliminary Look ........................................5 I. The Essential Role of the Supreme Court ........................................10 A. Hart and the Court’s Essential Role....................................10 B. The Critical Responses and the Apparently Dominant View.........................................................................................13 C. Textual and Other Ambiguities ............................................16 D. The Supreme Court, Limited Government, and the Rule of Law...........................................................................................21 E. Purpose and Jurisdiction-Stripping ......................................27
    [Show full text]
  • Jurisdiction Stripping in Three Acts: a Three String Serenade
    Volume 51 Issue 3 Article 3 2006 Jurisdiction Stripping in Three Acts: A Three String Serenade Caprice L. Roberts Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Constitutional Law Commons, and the Jurisdiction Commons Recommended Citation Caprice L. Roberts, Jurisdiction Stripping in Three Acts: A Three String Serenade, 51 Vill. L. Rev. 593 (2006). Available at: https://digitalcommons.law.villanova.edu/vlr/vol51/iss3/3 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Roberts: Jurisdiction Stripping in Three Acts: A Three String Serenade 2006] Article JURISDICTION STRIPPING IN THREE ACTS: A THREE STRING SERENADE1 CAPRICE L. ROBERTS* INTRODUCTORY NOTE Jurisdiction Stripping.2 Impeachment. Inspector General. Appointments. Same- Sex Marriage. The Pledge of Allegiance. Nuclear Option. 1. This subtitle stems from MAZZY STAR, Five String Serenade, on So TONIGHT THAT I MIGHT SEE (Capitol Records 1993). My intention with the alteration from "five" to "three" is to have the three strings symbolize the axes of tension between the three branches of federal government: executive, legislative and judicial. Although a separate string represents each branch to signify the separation of powers, the three together exist on one instrument to symbolize that they are linked together on a larger device upon which success or failure of one affects all. The instrument itself reveals the blending of relations and power that occurs when the three strings attempt to escape dissonance by achieving harmony through a certain level of balance.
    [Show full text]
  • More Stories of Jurisdiction-Stripping and Executive Power: the Supreme Court's Recent Prison Litigation Reform Act [PLRA] C
    Yale Law School Yale Law School Faculty Scholarship Series Year Paper More Stories of Jurisdiction-Stripping and Executive Power: The Supreme Court’s Recent Prison Litigation Reform Act (PLRA) Cases Giovanna Shay ∗ Johanna Kalb † ∗Yale Law School, [email protected] †Yale Law School, [email protected] This content in this repository is hosted by The Berkeley Electronic Press (bepress) and may not be commercially reproduced without the permission of the copyright holder. http://lsr.nellco.org/yale/fss/papers/9 Copyright c 2007. Posted with permission of the author. More Stories of Jurisdiction-Stripping and Executive Power: The Supreme Court’s Recent Prison Litigation Reform Act (PLRA) Cases Giovanna Shay and Johanna Kalb Abstract The “War on Terror” cases have raised important issues regarding separation of powers, jurisdiction-stripping, and the limits of executive authority. Another re- cent series of cases involving these same themes has garnered much less media and scholarly attention—the Prison Litigation Reform Act (PLRA) exhaustion cases of 2006 and 2007, Woodford v. Ngo and Jones v. Bock. Woodford con- cluded that the PLRA exhaustion requirement incorporated a procedural default component, which bars courts from hearing an inmate’s federal law claims if he or she fails to comply with all the technical requirements of a prison grievance system created and administered by the civil rights defendants. Jones confirms that the courts must enforce the rules of prison grievance systems in determin- ing whether a prisoner has exhausted his or her claim. In this article, Shay and Kalb argue that Woodford and Jones exemplify “jurisdiction-stripping by con- sent,” in which courts relinquish jurisdiction over disfavored categories of cases by adopting facially neutral procedural rules.
    [Show full text]
  • Congress's Article Iii Power and the Process Of
    42738-nyu_95-6 Sheet No. 92 Side B 12/10/2020 14:19:35 \\jciprod01\productn\N\NYU\95-6\NYU604.txt unknown Seq: 1 9-DEC-20 16:52 CONGRESS’S ARTICLE III POWER AND THE PROCESS OF CONSTITUTIONAL CHANGE CHRISTOPHER JON SPRIGMAN* Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “strip- ping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has histori- cally been understood. Is Congress’s power to remove the jurisdiction of federal courts in effect a legisla- tive power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively. In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Con- gress’s Article III power are profound. Congress may prescribe, by ordinary legis- lation, constitutional rules in areas where the meaning of the Constitution is unsettled.
    [Show full text]
  • Stories of Jurisdiction-Stripping and Executive Power
    Western New England University School of Law Digital Commons @ Western New England University School of Law Faculty Scholarship Faculty Publications 2007 More Stories of Jurisdiction-Stripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA) Giovanna Shay Western New England University School of Law, [email protected] Johanna Kalb Yale Law School Follow this and additional works at: http://digitalcommons.law.wne.edu/facschol Part of the Criminal Law Commons Recommended Citation 29 Cardozo L. Rev. 291 (2007) This Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. KALB.SHAY.FINAL.VERSION 10/24/2007 7:21:16 PM MORE STORIES OF JURISDICTION­STRIPPING AND EXECUTIVE POWER: INTERPRETING THE PRISON LITIGATION REFORM ACT (PLRA) Giovanna Shay* and Johanna Kalb** INTRODUCTION In the last several years, the Supreme Court has decided a number of important challenges to the government’s conduct of its “War on Terror.” Brought on behalf of persons alleged to be “enemy combatants,” many of whom were detained at Guantánamo Bay, these suits challenged the prisoners’ indefinite detention,1 asserted their right to access federal courts,2 and questioned the legality of the tribunals created to adjudicate the charges against them.3 The debate about the detainees’ access to federal courts has continued in Congress, with the passage of the Military Commissions Act (MCA),4 and in the lower courts, with challenges to the MCA.5 At the time this article goes to press, the Guantánamo litigation has returned once again to the U.S.
    [Show full text]
  • What Agencies Can (And Can't) Do to Limit Judicial Review 1689
    REGULATORY HIDE AND SEEK: WHAT AGENCIES CAN (AND CAN’T) DO TO LIMIT JUDICIAL REVIEW Bryan Clark* Amanda C. Leiter** Abstract: Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies’ role in modulating that oversight. We consider cases in which the timing or form of an agency ac- tion has curtailed judicial review of the agency’s policy choices. In some such cases, the agency’s choice of form deprived the court of statutory or Article III jurisdiction. In others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differ- ences, though, all such “reviewability” cases pose important constitutional questions about the degree to which an agency should be able to limit judi- cial oversight of its activities. We argue that courts pay too little attention to these questions, and we propose a more systematic framework for evaluat- ing the constitutional implications of allowing an agency to modulate the availability of judicial review by manipulating the structure of its actions. Introduction The “dominant narrative of modern administrative law” states that courts are “key players who help tame, and thereby legitimate, the ex- ercise of administrative power.”1 This narrative underlies the U.S. Su- © 2011, Bryan Clark & Amanda C. Leiter. * Law Clerk, U.S. District Court for the District of Kansas. J.D., Catholic University, 2010, summa cum laude. I would like to thank Professor Leiter for inviting me to join her in this venture. ** Associate Professor of Law, American University’s Washington College of Law.
    [Show full text]
  • Habeas and (Non-)Delegation Paul Diller†
    The University of Chicago Law Review Volume 77 Spring 2010 Number 2 © 2010 by The University of Chicago ARTICLES Habeas and (Non-)Delegation Paul Diller† Although the Constitution’s Suspension Clause explicitly mentions the writ of ha- beas corpus, it does not require that Congress make the writ available in its common- law form at all times. Rather, the Clause has long been understood to permit Congress to replace the writ with an alternative procedure, so long as that remedy is an adequate and effective substitute for habeas corpus. Under this functional view of the Suspension Clause, Congress might delegate responsibility for performing the habeas review func- tion to an entity other than an Article III court, so long as the substitute procedure al- lows a detainee to challenge the lawfulness of his detention fairly and effectively. Be- cause, at its core, habeas is concerned with checking arbitrary executive detention, how- ever, this Article argues that any delegation of the habeas review function to a non– Article III entity must conform to the dictates of the nondelegation doctrine. To delegate the authority for designing the procedures used to challenge executive detention to the very Executive responsible for detention would defeat the purpose of the Clause. In Boumediene v Bush, the Supreme Court cast doubt on its prior functional juri- sprudence regarding the Suspension Clause. In particular, the Court expressed hostility toward any substitute for habeas corpus that did not rely exclusively on an Article III court. This Article criticizes the Court’s approach in Boumediene and demonstrates how it threatens the functional view of the Suspension Clause the Court had embraced previous- ly.
    [Show full text]
  • The Exceptions Clause As a Structural Safeguard
    THE EXCEPTIONS CLAUSE AS A STRUCTURAL SAFEGUARD Tara Leigh Grove Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court’s mandatory appellate docket grew to the point that it was un- manageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made “exceptions” to the Court’s mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari—precisely so that the Court could concentrate its limited resources on resolving important federal questions. Thus, contrary to conventional wisdom, Congress has often used its broad exceptions power to safeguard the Supreme Court’s role in the constitutional scheme. INTRODUCTION ......................................................................................... 930 I. THE THEORY .........................................................................................
    [Show full text]
  • Congress's Power Over Courts: Jurisdiction Stripping and the Rule
    Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein Updated August 9, 2018 Congressional Research Service https://crsreports.congress.gov R44967 Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein Summary Article III of the Constitution establishes the judicial branch of the federal government. Notably, it empowers federal courts to hear “cases” and “controversies.” The Constitution further creates a federal judiciary with significant independence, providing federal judges with life tenure and prohibiting diminutions of judges’ salaries. But the Framers also granted Congress the power to regulate the federal courts in numerous ways. For instance, Article III authorizes Congress to determine what classes of “cases” and “controversies” inferior courts have jurisdiction to review. Additionally, Article III’s Exceptions Clause grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. Congress sometimes exercises this power by “stripping” federal courts of jurisdiction to hear a class of cases. Congress has gone so far as to eliminate a court’s jurisdiction to review a particular case in the midst of litigation. More generally, Congress may influence judicial resolutions by amending the substantive law underlying particular litigation of interest to the legislature. Congress has, at times, used these powers to influence particular judicial outcomes, raising concerns about whether Congress is acting in violation of the doctrine of separation
    [Show full text]