Volume 2014, Number 2
Ideology, Qualifications, and Covert Senate Obstruction of Federal Court Nominations
Ryan J. Owens, Daniel E. Walters, Ryan C. Black, Anthony Madonna | 2014 U. Ill. L. Rev. 347
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Scholars, policy makers, and journalists have bemoaned the emphasis on ideology over qualifications and party over performance in the judicial appointment process. Though, for years, the acrimony be-tween the two parties and between the Senate and President remained limited to appointments to the United States Supreme Court, the modern era of judicial appointments has seen the so-called “appointments rigor mortis” spread throughout all levels of judicial appointments. A host of studies have examined the causes and consequences of the growing acrimony and obstruction of lower federal court appointments, but few rely on archival data and empirical evidence to examine the underlying friction between the parties and the two branches.
In a unique study, the authors examine archival data to deter-mine the conditions under which Senators obstruct judicial nominations to lower federal courts. More specifically, the authors examine one form of Senate obstruction—the blue slip—and find that Senators use their blue slips to block ideologically distant nominees as well as unqualified nominees. More importantly, however, the authors find that among nominations to federal circuit courts, Senators block highly qualified nominees who are ideologically distant from them just as often as they block unqualified nominees who are ideologically distant from them. That is, stellar qualifications do not appear to mitigate the negative effects of ideological distance. The fact that blue slips occur in private, away from public view, allows Senators to block nominees entirely on ideological grounds without fear of individualized public retribution. Senators, in short, have taken an ag-gressive role in blocking highly qualified nominees who would otherwise make significant—but opposing—policy and who might one day become credible nominees to the Supreme Court were their nominations to move forward. By killing these nominations in the cradle, and outside the public view, Senators can block or delay the confir-mation of judges with whom they disagree ideologically.
The authors point out that policy makers and scholars who seek to reform the judicial appointmentprocess must therefore be very clear about their goals. If a reform’sgoal is to minimize the role of Senate ideology in the appointment process, then proposals that insu-late the process from the public eye are likely to backfire. For, as the data show, Senators take advantage of insulation to achieve ideologi-cal goals. On the other hand, if a reform’s goal is to maximize the role of Senate ideology—perhaps to offset the President’s first mover advantage or to recognize and directly address the fact that courts are policy making bodies—then proposals that insulate the process from the public eye are likely to accomplish that goal.
Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures—a trend said to be explosive—they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.
How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. It explores a large database of agreements entered into by public firms and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses and the economic logic which makes them so compelling.
A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform, and progressive; they will be punctuated, particularized, and contingent.
The movement for same-sex marriage has been politically triumphant, but its case is incomplete because the arguments against it have not been understood. Major social change should not occur without addressing the claims made by same-sex marriage opponents. This piece presents and critiques consequentialist and nonconsequentialist arguments against same-sex marriage. The conse-quentialist arguments rely on claims that legalizing same-sex marriage will lead to disastrous societal and familial effects. The nonconsequentialist arguments rest on claims that marriage is an inherently heterosexual institution. The Article concludes that none of these arguments have merit.
This Article presents new empirical evidence demonstrating that serious intra-corporate disputes at public companies now attract law-suits in multiple fora. No existing mechanism can reliably coordinate shareholder litigation in different court systems, and the resulting dis-order generates uniformly negative consequences for shareholders. The multi-forum character of shareholder litigation can undermine its deterrent effect by aggravating the disjunction between settlement val-ues and merit. At the same time, the multi-forum pattern can dimin-ish the quality of U.S. corporate law over time by depriving incorporation states of important cases. This Article proposes to fix multi-forum shareholder litigation by creating a clear and simple mechanism for coordinating similar cases in different court systems. This proposal would require federal courts to stay proceedings in shareholder litigation when a similar case is pending in the state of incorporation. It would also allow suits filed in states other than the state of incorporation to be removed to federal court, where they would be subject to the same stay of proceedings. Such a system would neutralize the ability of any plaintiff to file a case that could compete for settlement with a case in the incorporation state. The result is an ordered solution to the problem of multi-forum shareholder litigation that prioritizes the state of incorporation when suits are filed in competing fora but otherwise does nothing to restrict the venue options of shareholders.
A Chink in the Armor? The Prosecutorial Immunity Split in the Seventh Circuit in Light of Whitlock
Nicholas R. Battey | 2014 U. Ill. L. Rev. 553
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For U.S. citizens whose constitutional rights have been violated
by government officials, 42 U.S.C.§ 1983 provides a powerful form
of punishment against the wrongdoer.Wrongful convictions due to
prosecutorial misconduct, such as withholding Brady material or fabricating evidence, should theoretically allow victims of these erroneous convictions to sue the prosecuting attorney. Yet, the answer is not
this simple because the Supreme Court’s prosecutorial immunity doctrine bars Section 1983 suits against prosecutors in certain instances.
In 2012, the Seventh Circuit examined two prosecutorial immunity cases, but, somewhat perplexingly, arrived at two different answers. This Note examines the Seventh Circuit’s split on prosecutorial immunity and the reasoning behind each case’s result, after laying the backdrop to Section 1983, the immunity doctrine, and policy rationale for prosecutorial immunity in particular. Using economic principles, this Note argues that prosecutorial immunity doctrine should be re-formed to promote prosecutorial autonomy and criminal justice system efficiency, while more effectively deterring prosecutor misconduct. This Note seeks to balance the needs of the criminal justice system with a citizen’s right to a remedy by recommending broader discovery disclosure rules and criminal sanctions to prevent prosecutor misconduct. Finally, the Note examines the lack of available data and empirical studies on effective deterrence methods and provides suggestions for what future studies should examine.
Minimizing the menace of the Foreign Corrupt Practices Act
Kristin Isaacson | 2014 U. Ill. L. Rev. 597
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In the second half of the twentieth century, the United States decided to crack down on foreign corruption as part of its attempt to
stop the spread of communism abroad. Pursuant to this goal, Congress passed the Foreign Corrupt Practices Act (FCPA), which generally prohibits American corporations from bribing foreign officials.
This Note examines the various problems associated with the FCPA: the disadvantages created by the FCPA’s creation of an uneven playing field for American corporations, the inherent ambiguity of the FCPA’s language, and the subsequent excessive compliance costs created for U.S. corporations operating abroad. In addition, this Note addresses the United States’ uneven enforcement of the FCPA, and the Act’s effect in foreign countries where certain forms of “bribery” are considered the price of doing business.
In light of the problems created by the FCPA for both U.S. corporations and the foreign countries in which they operate, this Note ultimately recommends that the ambiguous bribery provisions of the FCPA should be clarified or repealed entirely and the problem of corruption in foreign countries reassessed.
The Supreme Court and § 101 Jurisprudence: Reconciling Subject-Matter patentability Standards and the Abstract Idea Exception
Jeremy D. Roux | 2014 U. Ill. L. Rev. 629
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Can abstract ideas be patented? Not surprisingly, the act of defining a patentable abstract idea is inherently abstract. Subject-matter patentability is addressed in 35 U.S.C. § 101, which lays out four types of inventions eligible for patent protection. Although the statute has been construed broadly, it has been subject to three judicially created exceptions, and one of them is abstract ideas. While § 101 is well suit-ed to adapt to changes due to new and unforeseen technologies introduced into our society, a coherent rule to govern patentability of abstract ideas has been lacking. After thirty years’ confusion over § 101 subject-matter patentability in federal courts, the U.S. Supreme Court recently took the opportunity to address this problem in two very important cases. Unfortunately, the Supreme Court has taken a passive position, without elaborating on a definitive substantive framework to aid lower courts in the § 101 abstract idea analysis. As a result, the subsequent Federal Circuit opinions have often been unclear and contradictory. This Note addresses the many unresolved issues surrounding the abstract idea analysis as evinced by Supreme Court and Federal Circuit jurisprudence in the past three years. In addition to outlining each opinion’s reasoning and summarizing key themes, this Note offers a pragmatic solution that could add more certainty to § 101 jurisprudence. The suggested approach would enable § 101 to filter out undesirable inventions without overburdening courts by forcing them to grapple with the amorphous bounds of abstract ideas.