VOLUME 161, ISSUE 1 December 2012

Articles

Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences

Stephen B. Burbank, S. Jay Plager & Gregory Ablavsky

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of assuming senior status or retiring.

Can the States Keep Secrets from the Federal Government?

Robert A. Mikos

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but lower courts have uniformly upheld the federal government’s power to commandeer information from the states. This Article provides the first in-depth analysis of the commandeering of states’ secrets. It identifies the distinct ways in which the federal government demands information from the states, illuminates the harms such demands cause, and challenges the prevailing wisdom that states may not keep secrets from the federal government. Perhaps most importantly, the Article argues that courts should consider federal demands for information to be prohibited commandeering. It suggests that the commandeering of state information-gathering services is indistinguishable in all relevant respects from the commandeering of other state executive services. The Article discusses the implications such a ruling would have in our federal system, including its potential to bolster the states’ roles as sources of autonomous political power and vehicles of passive resistance to federal authority.

Information Issues on Wall Street 2.0

Elizabeth Pollman

Billions of dollars have flooded new online marketplaces for trading private company stock. These marketplaces stand poised to become important, lasting features of the private company world as they provide a central meeting place for buyers and sellers and potentially increase the liquidity of private company stock. Increased liquidity is particularly important to investors in start-up companies, as these companies have faced longer periods of time before going public or being acquired. The new marketplaces also raise significant information issues, however, that threaten their legitimacy and efficiency. This Article is the first to examine these information issues—lack of information, asymmetric information, conflicts of interest, and insider trading—as well as possible solutions that would allow the markets to continue to evolve while promoting their integrity and investor protection goals. Specifically, the Article proposes establishing a minimum information requirement for secondary trading in private company stock and reexamining the thresholds for accredited investor status in order to ensure that market participants can fend for themselves without additional protections. The Article also examines potential responses to insider trading in these markets, arguing that a case exists for the SEC to take action in the private market context, since harm may be cognizable and the arguments for regulating insider trading are as strong in the private market arena as in the public.

Comments

Take Care That the Laws Be Faithfully Litigated

Parker Rider-Longmaid

In this Comment, I argue that the framework Presidents use to decide whether to defend arguably unconstitutional statutes should be elaborated for statutes that the President believes violate the Constitution’s guarantee of equal protection--specifically where he believes that the courts should apply heightened scrutiny where they currently do not. After surveying the constitutional authority and arguments for presidential nonenforcement and nondefense, I discuss the nonenforcement decisionmaking framework established in 1994 by Walter Dellinger, then–Assistant Attorney General at the DOJ's Office of Legal Counsel. But, I argue, in equal protection cases where the President believes the statute should be struck down under heightened scrutiny, he has a weightier duty not only to decline to defend the constitutionality of the statute, but further to instruct the Department of Justice to attack it in litigation. His effort should focus as much on influencing the Supreme Court as predicting its eventual decision. To this end, I offer my own modified framework for presidential nondefense decisionmaking, elaborated for the equal protection context. Finally, I apply this model to evaluate President Obama’s decision not to defend the Defense of Marriage Act.

Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse

Joshua M. Koppel

The current system of discovery in the federal courts can produce enormous costs for both litigants and the court system. These costs stem from the overuse of both discovery in general and costly mandatory discovery procedures that are relevant in only a small subset of litigation. The alleged costs of discovery have spawned a number of articles and studies in recent years condemning the federal system of broad discovery.

In a pair of recent cases, the Supreme Court responded to the criticism of rising discovery costs by instituting a heightened pleading standard meant to prevent meritless litigation from reaching the discovery stage. Unfortunately, this crude attempt to rein in unnecessary discovery also threatens to kick much meritorious litigation out of the courts by preventing under-resourced plaintiffs from invoking the authority of the courts to gather basic information crucial to their cases. Better solutions to the problem of discovery costs would address the system of discovery itself.

The primary problem with the current rules of discovery is that they sweep too broadly. Because the Federal Rules of Civil Procedure are transsubstantive—meaning that the same rules apply in every type of case— the discovery rules are not narrowly tailored to the requirements of any particular case. Transsubstantivity was one of the guiding tenets in the creation of the original Federal Rules of Civil Procedure, but the principle has come under attack more recently.

The creation of substance-specific (nontranssubstantive) rules, especially in the area of discovery, holds promise for reducing costs by replacing broad rules with rules that are narrowly tailored to particular types of litigation. Narrowly tailored rules will help reduce waste and abuse in the discovery process. A system of nontranssubstantive rules will also allow rulemakers to make deliberate choices about how discovery can be used as a tool to promote goals of substantive and procedural fairness, thereby allowing rulemakers to decide when costly discovery would or would not be appropriate.