Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and independent federal judiciary? In short, yes. From the vantage point of a district court’s chambers, we experienced firsthand the uncertainty that almost weakened the federal judiciary when Congress and the President were at odds over the budget, threatening the judicial branch of the government with shrinkage or closure. This Essay asserts a viable legal theory—we call it a “theory of necessity”—to prevent any constitutional crisis caused by a future government shutdown. This theory invokes four building blocks of well‐established legal doctrines that, when connected, pave a path to secure the judicial branch’s autonomy. The theory of necessity requires the legislative and executive branches to recognize their constitutional obligations to fund the judicial branch, without interruption.
The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.
Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.
The University of Pennsylvania Law Review Online presents the second installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar.” The series continues with Professor Charles Geyh’s response, “Considering Reconsidering Judicial Independence.” Professor Geyh draws on Professor Burbank’s idea that judicial independence and judicial accountability are merely “two sides of the same coin” and goes further, positing that the two‐sided coin and its expected cyclical return to equilibrium is a “Hallmark after‐school special” version of the reality, and that curbing the erosion of the public perception of the judiciary will take more than reliance on that cycle perpetuating.
Primarily, Professor Geyh shows that in order to slow and stop the downward spiral, we must wean ourselves off the “antiquated” approach to judicial independence and accountability—the rule‐of‐law paradigm—by turning toward of a more robust “legal culture” paradigm which takes into account the fact that, indeed, judges’ decisions are necessarily subject to extra‐legal influences.
Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the court prima facie evidence of injury, exposure, and specific causation—sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand‐coded dataset, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.
Joseph Fishman and Deepa Varadarajan address a critical question in their new article, Similar Secrets: should trade secret law prohibit substantially dissimilar uses of trade secret information by those who took that information through improper means or in violation of a duty of confidentiality to the information’s owner, particularly when those dissimilar uses result in innovative new pursuits of high social value? Under current doctrine such an action would likely lead to a viable claim of trade secret misappropriation. But should this type of “retooling” really be discouraged by trade secret law?
This Response shows that the article’s thesis—that trade secret law should imitate copyright law’s willingness to permit substantially dissimilar uses of content—conflicts with trade secret law’s fundamental purpose: to protect the integrity of secret information. Whereas Fishman and Varadarajan have turned to copyright law for help, it makes more sense to focus on improving the doctrines we already have. Improving existing doctrines will do more to ameliorate concerns about hindering innovative new uses, while maintaining trade secret law’s fundamental goals.