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March 25, 2012

Spotlight on Public Law at Northwestern

by dan rodriguez

As we prepare for a celebration later this week for our colleague, Marty Redish, whose influential work in the area of constitutional law and federal jurisdiction, has been a model for many public law scholars around the country, we turn the spotlight on several of our prominent public law scholars.

We begin with Professor James Pfander, a national authority on federal jurisidiction, its doctrinal vagaries and its history.

Pfander concentrates on the history of Article III and the way that history may continue to shape the operation of the federal judiciary today.  In a series of papers, culminating in his Oxford press book, One Supreme Court, Pfander has argued that the framers of Article III established a hierarchical judicial system with one supreme court sitting on top.  This conception of the judiciary has re-focused the debate over such disparate questions as what relationship state courts bear to the Supreme Court, what power Congress has to deprive the Court of its power to review the work of lower courts, and how far Congress can go in placing administrative adjudication beyond the oversight and control of the federal judiciary.  Pfander’s most recent paper (written with a Northwestern student co-author and published in the Harvard Law Review) shows that the eighteenth century Scottish judiciary may have provided one model for the framers’ hierarchical design.

Alongside his work on history and structure, Pfander has been examining the nature of judicial office.  An early paper, in the Chicago Law Review, defended the idea that the removal of Article III judges requires bicameral congressional action, namely impeachment by the House and conviction by the Senate.  In a more recent paper in Michigan Law Review, Pfander argues that the framers switched from a fee-based to a salary-based compensation system for federal judges as part of an attempt to ensure limited federal jurisdiction.  A working paper, due out next year in Northwestern Law Review, argues that the framers sought to eliminate the patronage power of the Chief Justice and thus provided for the appointment of inferior judicial officers not by the Chief but by the Court itself.

Pfander has written a number of papers that urge a more coherent approach to government accountability.  His early work casts doubts on the Court’s expansive interpretation of state sovereign immunity.  A more recent paper (also co-authored with a Northwestern student and published in the NYU Law Review) demonstrates that nineteenth century government officers sued for action taken in the scope of their employment were routinely indemnified by private bills enacted by the antebellum Congress.  Such routine indemnity ensured compensation for victims, avoided the need for a regime of qualified immunity, and worked around the doctrine of sovereign immunity.  Pfander has also raised questions about the Court’s approach to so-called Bivens claims, suits against federal officers for constitutional torts.  One article argues for parity in the treatment of state and federal officials; another published in the Columbia Law Review argues that the Court should allow nominal claims to proceed without a qualified immunity defense, thereby permitting individuals to obtain an adjudication of their constitutional claims in a world of legal uncertainty.

Pfander has also been trying to solve practical problems of appellate jurisdiction.  One paper published in the Pennsylvania Law Review argues that the Court itself should conduct supervisory review of remand orders and eliminate the routine appellate review of such orders that now occurs in the circuit courts.  A second paper suggests the novel idea that Congress should authorize interlocutory review of important and potentially dispositive lower court orders by agreement of the parties.  Such agreed-upon appellate review could help settle cases in which the parties disagree about the likely resolution of a controlling legal question.

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