Volume 87.6 (September 2020) 1481-1736
Political Questions and the Ultra Vires Conundrum
Richard H. Fallon Jr - Story Professor of Law, Harvard Law School.
This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are themselves ultra vires. The need for the judiciary to press to the outer limits of its jurisdiction to rein in ultra vires action by other institutions renders political question rulings less categorical, and also less distinct from merits decisions, than both judges and commentators have often imagined. The inescapable role of the courts in identifying ultra vires action by other branches also highlights the possibility of ultra vires action by the courts themselves.
The paired risks of ultra vires action by the courts and ultra vires action by other branches if the courts could not assert jurisdiction to restrain them—both made vivid by the political question doctrine—define what this Article calls the ultra vires conundrum. The ultra vires conundrum, in turn, gives rise to what we might think of as ultimate political questions: What happens if courts err in their determination of the outer bounds of their own power? If the courts act ultra vires, do their decisions bind conscientious officials of other branches? And if not, who gets to decide when judicial action is ultra vires?
Besides formulating the ultra vires conundrum and answering the questions that define its core, this Article solves a number of more traditional, interrelated puzzles about the political question doctrine that appear in a new light once the ultra vires conundrum lies exposed. It also traces previously unexplored connections between political questions and the ideal of the rule of law.
The Adjudicative Model of Precedent
Charles W. Tyler - Visiting Professor of Law and Executive Director, Constitutional Law Center, Stanford Law School.
In most courts, a statement in an opinion is a holding only if it was necessary for the outcome of the case. Several state courts and one federal court of appeals, however, have a much broader definition of a holding, which this Article calls the “adjudicative model.” The adjudicative model defines a holding as any ruling expressly resolving an issue that was part of the case.
This Article offers the first empirical and normative assessment of the adjudicative model. It describes an empirical case study of the Ninth Circuit and finds that, after adopting the adjudicative model, that court was more likely to follow its precedent in cases involving disputes about the holding/dictum distinction. To the extent this finding can be generalized to other courts using the adjudicative model, it promotes consistency in a court’s stated rules of law and hastens the development of case law. But the adjudicative model also creates an incentive for judges to overreach, perhaps reducing the overall quality of a court’s decisions and giving greater influence to its outliers. Because these values are in tension, a court’s definition of a holding should ultimately depend on its particular institutional features—such as its size, decision-making processes, and the nature of its docket—which can amplify or diminish the adjudicative model’s relative costs and benefits.
The Scope of Tribal Immunity in Real Property Disputes
Sean Frazzette - AB 2016, Harvard College; JD Candidate 2021, The University of Chicago Law School.
Native American tribes are sovereign nations with some degree of sovereign immunity. The exact contours of that immunity are often in flux. While the Supreme Court has established the confines of tribal immunity in cases involving torts, taxation, and contracts, it has avoided determining the doctrine’s application to cases involving real property. Recently, in Upper Skagit Indian Tribe v Lundgren, the Court dismissed the common notion that prior precedent mandates an in rem versus in personam distinction but refused to answer whether tribes can claim sovereign immunity in in rem actions against tribal land. By analyzing the history of tribal sovereignty, land ownership, and immunity from suit, this Comment argues that absent explicit congressional action, tribes can claim sovereign immunity in suits involving any form of tribal property. Only tribes themselves and the legislative branch of the federal government have the constitutional authority to alter these contours.
The dissent in Upper Skagit Indian Tribe introduced a relevant legal concern: the immovable property exception to sovereign immunity. But an analogy to the historical treatment of foreign nations quickly disposes of this concern. The concurrence proposed a policy concern: the potential for sovereign immunity to be used as a sword rather than a shield. This concern is readily refuted, however. The history of sovereign immunity in the United States, especially with regard to foreign nations and Native tribes—as well as the best interest of the tribes—side with broad immunity from suit. Under this Comment’s expansive approach to tribal immunity, Congress maintains its role as the sole political branch that may adjust tribal immunity, and—more importantly—tribes maintain the right to determine their own sovereignty and invoke their own immunity, protecting land that the government has so consistently taken from them throughout this country’s history.
An Institution "at Arm's Length": Reconsidering Supervisory Power over the Federal Grand Jury
Rebecca Gonzalez-Rivas - AB 2016, Harvard College; JD Candidate 2021, The University of Chicago Law School.
Grand jury proceedings are shrouded in secrecy. No judge presides over them, no reporter annotates them, and when they have concluded, no juror may speak about them. While secrecy serves many important functions for the grand jury, its veil may be lifted under certain circumstances. Grand jury records may be released if they fall under a disclosure exception laid out in Federal Rule of Criminal Procedure 6(e). While some courts limit release to the exceptions laid out in the Rule, others look to an alternative source of authority.
Several courts of appeals have held that district court judges may exercise inherent supervisory power in authorizing the release of grand jury records. Judges may consider the public interest in disclosure, compare it to the institutional interest in secrecy, and decide for themselves. Other circuits find no such power.
The circuits have reached an impasse on the text of the Rule alone, with each side offering compelling but incomplete justifications for their interpretation. This Comment provides an alternative path forward. By examining the history of the grand jury and the relationship between the Federal Rules and common law supervisory power, this Comment argues that district court judges lack inherent supervisory power over the grand jury to order disclosure. Courts that follow the exhaustive position—that Rule 6(e)(3) limits the exceptions when a court may authorize disclosure—better align with the understanding of the grand jury as an independent body. Conscious of this historical positioning, this Comment returns to both influential and overlooked Supreme Court precedent and offers a more contextually grounded interpretation of each. Judges have discretion to act within the bounds of Rule 6(e), not outside of it.
Statutes and Spokeo: The Case of the FDCPA
Jason R. Smith - AB 2018, The University of Chicago; JD Candidate 2021, The University of Chicago Law School.
The Supreme Court’s decision in Spokeo, Inc v Robins clarified the “concreteness” element of the injury-in-fact requirement for standing. The Court explained that while some statutory violations are concrete injuries, others are merely procedural and insufficient for standing without additional allegations of concrete harms. Federal courts have divided on the decision’s application to many statutory causes of action, including the mandatory disclosure requirements of the Fair Debt Collection Practices Act (FDCPA). While some courts view FDCPA mandatory disclosure violations as concrete injuries if they threaten the plaintiff’s concrete interests, others view the violations as merely procedural and never sufficient for standing. This Comment argues for a third view, that an FDCPA mandatory disclosure violation is always a concrete injury regardless of whether it causes the plaintiff to suffer or risk subjective harm. That conclusion flows from a new view: applying Spokeo to statutory violations turns on whether the provision at issue has a deterrent or a compensatory function. Because the FDCPA’s text, remedies, statutory purpose, legislative history, and treatment in other contexts indicate that it is deterrent, violations of its mandatory disclosure provisions are concrete injuries.