Associate Professor

There is a great deal to admire in Professor Flaherty’s carefully researched volume, including the impressive historical contextualization of a broad swath of doctrines touching on foreign affairs. As Professor Flaherty shows, courts in the early republic played a far more prominent and assertive role in foreign affairs controversies than does the modern judiciary actively enforcing international law and treaty commitments and enforcing meaningful limits distinguishing Congress’s foreign affairs powers from those of the President. If judged simply by reference to the practical significance of the judiciary’s role in foreign affairs throughout the eighteenth, nineteenth, and early twentieth centuries, there seems little basis for doubting that modern cases suggest a substantially diminished role for the judiciary in this particular category of legal questions.But this focus on practical significance is not the only perspective from which the judiciary’s proper “role” in the conduct of US foreign affairs might plausibly be assessed. Part I of this Essay sketches an alternative way of thinking about judicial “role” that connects the interpretive power and authority of the Article III federal courts to those courts’ more fundamental duty to accurately apply the underlying substantive law to the particular cases and controversies that are brought within their jurisdiction. When assessed from this perspective, straightforward comparisons of judicial “role” at different points in US history of the type that feature prominently in Professor Flaherty’s book become somewhat more complicated. Because the content of the underlying substantive rules of law may have changed over time, it is possible that the judiciary’s proper functional “role” in foreign affairs controversies might be significantly less prominent today than it had been in the past even if the courts themselves faithfully adhere to a consistent understanding of their constitutional role and duty.Part II of the Essay briefly considers three possible instances of legal change that might plausibly have influenced the judiciary’s “role” in foreign affairs matters in the manner Part I suggests. In particular, Part II focuses upon: (1.) the practical demise of prize jurisdiction as a meaningful subject of international law in the late nineteenth and early twentieth centuries, (2.) the United States’ enhanced engagement with multilateral human rights treaties and the corresponding increase in treaty reservations during the midtwentieth century, and (3.) the shift in the conceptual underpinnings of the statutory presumption against extraterritoriality that occurred between the middle and later decades of the twentieth century.

Boston College Law School Faculty Papers

“Judicial Role” and Judicial Duty in Foreign Affairs

Understanding the precedential significance of Supreme Court plurality decisions is a task that has long confounded lower court judges. Surprisingly, the Supreme Court has offered little direct guidance on this question apart from a single sentence in Marks v. United States, which instructed that where the Justices fail to converge on a single majority rationale, the “holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” But this single, cryptic directive from a decision handed down more than four decades ago offers little meaningful guidance to lower courts struggling to apply the “narrowest grounds” rule to the Court’s fractured majority decisions.This Article suggests a new approach to plurality precedent that focuses on connecting the lower courts’ precedential obligations to the actual majority agreements among the Justices from which plurality decisions result. The defining feature of a plurality decision is an agreement among a majority of Justices on the appropriate judgment in a particular case without a corresponding majority agreement on the reasons why that judgment was correct. As such, the judgment itself provides the natural focal point for determining the lower courts’ precedential obligations. By focusing on the Court’s judgment and the rationales for that judgment endorsed by the various factions of concurring Justices, lower courts can identify a universe of subsequent cases that are sufficiently “like” the precedent case to demand consistent treatment—namely, those cases in which each of the judgment-supportive rationales would compel the same result. This approach binds lower courts without constraining them to follow a rationale that was endorsed by only a minority faction on the Court. The approach thus promises to constrain lower courts’ decisionmaking to some extent while identifying a domain of bounded discretion in which such courts remain free to continue working through the complicated legal questions the Court was unable to answer definitively in the original plurality decision.

Questioning Marks: Plurality Decisions and Precedential Constraint

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time.The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision’s oblique reference to “a Republican Form of Government.” But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision’s meaning and significance — namely, what it means for the United States to “guarantee” such republican government to the states.This Article seeks to shed new light on the original meaning of the term “guarantee” in the Guarantee Clause by looking to an unexpected source — namely, eighteenth-century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth- and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term “guarantee.” As used in eighteenth-century treaties, the term “guarantee” signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee.Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated, support to the Supreme Court’s longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance.

The "Guarantee" Clause

The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworks for addressing the problem of plurality precedent, little existing commentary has focused on a deeper and more fundamental question—namely, what makes plurality precedent so confusing? Answering this question is not only critical to developing a more coherent and administrable doctrine of plurality precedent but is also a useful prism through which to examine our shared understanding of precedential authority more generally.
This Article argues that plurality decisions are so confusing because they expose a latent ambiguity in our law of precedent. Looking to the debates surrounding plurality precedent reveals at least three distinct—and to some extent, mutually inconsistent—models of precedential authority. The first of these models, the “judgment model,” is closely connected to the traditional common law view, which grounds the precedential authority of judicial statements in the ability of those statements to explain the particular judgment issued by the court in the case before it. The second model, the “prediction model,” views the holding of a case as the rule that best predicts the future behavior of the court based on the expressed views of the participating judges. Finally, the “pronouncement model” focuses on the judiciary’s law declaration function, viewing all majority-endorsed legal rules as entitled to precedential force regardless of their connectedness to the court’s judgment or their capacity to predict the court’s future behavior.
Exposing the ambiguities inherent in plurality precedent does not provide a clear answer to how the conflict among the competing models should be resolved. But doing so may help eliminate some of the conceptual confusion that has grown up around plurality precedent. In particular, focusing on the underlying theories of precedential authority that drive the various approaches to plurality precedent suggests that some of the most widely accepted approaches that have been embraced by lower court judges may lack a coherent justification in any plausible model of precedential authority. Recognizing the underlying ambiguity can also help to expose potential connections to other, seemingly unrelated doctrinal areas that may be affected by changes to the doctrine surrounding plurality precedent.

Plurality Decisions and the Ambiguity of Precedential Authority

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While this perspective unquestionably has value, it ignores the adjudicative context in which the vast majority of litigated constitutional questions are finally resolved.The question of whether and to what extent lower courts should use originalism in their own decisionmaking is hardly an insignificant one. Although lower courts are strictly bound to follow controlling Supreme Court precedent, these strictures leave open a wide domain in which the choice between originalism and other modes of decisionmaking might plausibly affect the content of lower courts’ decisions. But lower courts face a number of institutional limitations and challenges that do not directly confront the Supreme Court, including greater time and resource constraints and the inability to overrule directly controlling nonoriginalist precedents.This Article aims to examine lower court originalism by looking to a set of values commonly associated with our system of vertical stare decisis—including uniformity, accuracy, efficiency, percolation, and legitimacy—as well as a set of values commonly associated with originalism itself—including popular sovereignty, judicial restraint, desirable results, and positive law. In general, the use of originalism by lower court judges is likely to be more costly and error–prone than similar decisionmaking by the Supreme Court, while being less likely to directly further certain of the values most closely associated with originalism. This assessment does not necessarily suggest that lower courts should never seek to incorporate originalist methods into their own decisionmaking. But it does suggest the need for a cautious and thoughtful approach that takes proper account of the institutional limitations of lower court decisionmaking.These challenges are hardly unique to originalism. Similar challenges confront virtually all constitutional theories, particularly those that, like originalism, ask lower courts to look beyond the relatively familiar tools of case-focused, doctrinal reasoning.

Lower Court Originalism

For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively allows courts to establish their own jurisdiction simply by concluding that they possess it, critics of the power-based conception contend that the definition no longer provides a descriptively plausible or conceptually coherent account of jurisdiction’s identity. 

This Article defends the traditional power-based conception of jurisdiction’s identity as both conceptually coherent and normatively desirable. The key to reconciling jurisdiction-as-power with the bootstrap doctrine is to recognize that different criteria may be appropriate for different decision makers at different stages of the adjudicatory process. From the perspective of the rendering court, the applicable jurisdictional rules supply the sole criteria of legal validity. A conscientious judge seeking to work within the confines of her own authority has no discretion to ignore jurisdictional limits or to proceed to a final judgment unless she determines that jurisdiction actually exists. But from the perspective of a later court called upon to recognize an earlier court’s judgment, the criteria of validity are supplied instead by the bootstrap doctrine. That doctrine would sometimes require a later court to act as if jurisdiction were present in the original proceeding even if it was not. But such “as if” exceptions are a familiar part of our law and are not generally understood to supplant or displace the underlying legal rules. 

The power-based conception of jurisdiction is not only descriptively plausible and conceptually coherent; it also facilitates jurisdiction’s distinctive role in structuring and allocating decision-making authority between different actors and institutions. Understanding jurisdiction as power can also lead to a deeper understanding of jurisdiction’s necessary effects and illustrate why several of the effects often associated with jurisdiction—such as nonwaivability and insusceptibility to equitable exceptions—are not, in fact, essential to jurisdiction’s identity. Finally, a clearer understanding of jurisdiction’s identity as the “power” of a rendering court can also help inform and clarify various jurisdictional doctrines and lead to a better understanding of the federal judiciary’s role in the constitutional structure.

Ryan Williams

Works

“Judicial Role” and Judicial Duty in Foreign Affairs

Questioning Marks: Plurality Decisions and Precedential Constraint

The "Guarantee" Clause

Plurality Decisions and the Ambiguity of Precedential Authority

Lower Court Originalism

Jurisdiction as Power

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Questioning Marks: Plurality Decisions and Precedential Constraint

The "Guarantee" Clause

Plurality Decisions and the Ambiguity of Precedential Authority

Lower Court Originalism

Jurisdiction as Power

Works