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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts State-building in the Judiciary, Judicial Independence, and Judicial State-building
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Friday, August 16, 2024
State-building in the Judiciary, Judicial Independence, and Judicial State-building
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Bradley D. Hays
Emily Zackin and Chloe N. Thurston have
written a thoughtfully constructed, carefully researched, and highly accessible
study of debt relief in the United States.
The book’s primary contribution comes through its detailed analysis of
how debt relief policy shifted from debt policies favorable to creditors to
debtor-protective policies as debtors mobilized and, then, regression back to a
creditor-friendly regime. In telling
this story, the authors also contribute to our understanding of institution
building in the judiciary. This story
will be of interest to a wider section of academic who, like myself, know
little about debt policy but are interested in judicial capacity and
authority. For the purposes of this
review, I focus on this state-building and the way it connects to other
episodes within the judiciary. In doing
so, I hope to point out how Zackin and Thurston’s work connects not just to
state-building within the judiciary but to judicial independence and judicially
driven state-building. The
Political Development of American Debt Relief tightly ties debt relief to
expanding the federal judiciary’s governing capacity. Each debt relief reform brought changes to
the means of administering and enforcing that policy. In other words, certain debt relief
legislation changed the state’s governing capacity. And since, as Zackin and Thurston explain,
bankruptcy administration was granted to the judiciary, it meant the courts
were vested with new capacity and authority.
These expansions of capacity are episodes of state-building. Characterizing these measures, particularly
the Bankruptcy Law of 1898, as state-building matters for several reasons. First, as the authors note, the
state-building we see here precedes the New Deal period that is typically the
focus of scholars concerned with the development of American state governing
capacity. Second, establishing the
judiciary as the administrator of bankruptcy proceedings represents a choice to
empower courts rather than the federal bureaucracy. In the era of parties and courts, Congress
opted against a potentially more expensive and slower-to-implement bureaucratic
option and, instead, empowered federal district judges to appoint referees to
aid in conducting bankruptcy proceedings (83). In other words, administrative
capacity was located in the
judiciary. Third, the development of the
referee system contributed to further developments in the lower levels of the
federal judicial structure. While Zackin
and Thurston do not focus on these connections, the threads identified within
the book are important as they enable future scholars to explore the connection
of debt-related state-building in the judiciary to subsequent episodes that
expanded judicial capacity. These
threads also help us understand the shift from state-building within the
judiciary to judicial state-building. In
what follows, I identify how one such connection can be made, what additional
administrative capacity means for independence, and how this capacity enables
the judiciary to engage in expanding its own governing capacity. The
bankruptcy referee system paved the way to the transformation of the United
States commissioner system into the existing federal magistrate judges
system. The mid-twentieth century saw
renewed interest in reforming various aspects of the justice system. Zackin and Thurston detail how Congress centralized
and professionalized the bankruptcy referee system by granting the
Administrative Office of the United States Courts supervisory authority and
establishing salaries (rather than fees) for referees. As early as 1942, the Administrative Office
identified weaknesses in the existing commissioners system. After the reforms to the bankruptcy referee
system, the Judicial Conference of the United States acknowledged that while “a
system of compensating public officers is always preferable to a fee system,”
in the case of US commissioners, “it would be impractical” due “to the large
number of United States commissioners” compared to the number of referees.[1] (The Judicial Conference also studied the
merits of expanding commissioner jurisdiction to try petty offenses.) While not yet considered practical, the
referee system was being used as a model for how reforms might be brought to
the commissioner system. The
ideas of the 1940s and 1950s found traction in the 1960s. This was due, in part, to the experience with
the bankruptcy referees and its perceived efficiencies. When the Judicial Conference again assessed
the commissioners system in 1964, reform proposals regularly incorporated
aspects of the bankruptcy referee system.
This time, the Administrative Office had nearly two decades of oversight
experience from which to draw. Zackin
and Thurston note that efforts to establish institutional autonomy have
“political consequences for the structure of the federal state” (88). Here, the Director of the Administrative
Office, Warren Olney III, marshaled examples and models from the referees
system to help build legislative momentum for broader reform. Notably, a model of assistance to district
judges, much like the referee system, proved more compelling than expanding the
district courts via additional judgeships. The experience with bankruptcy referees
not only addressed institutional concerns but also constitutional
questions. Specifically, concerns were
raised that delegating certain authorities to the magistrates (e.g. trying
petting offenses) violated Article III by having non-Article III officials
exercising power exclusive to Article III judges.[2] However, the lengthy history of bankruptcy
referees and their exercise of “judicial functions” demonstrated that the
judicial power could “be split up and portions handled by various judicial
officials.”[3] Zackin and Thurston observe that
constitutional questions about the purposes of bankruptcy laws were settled by
the late 19th century. Yet, the
institutions created to enforce now-settled constitutional policy were then cited
as precedent that vesting such judicial functions in officials who were not
Article III judges was also constitutional.
Zackin and Thurston tell us a story that lays out a constitutional
settlement on bankruptcy and the creation of institutions to enforce those
policies. They also lay a foundation to
connect one episode of state-building within the judiciary to other
episodes. Developing
institutions to facilitate bankruptcy proceedings also contributes to an
underappreciated buttress for judicial independence. Vesting the administrative capacity to manage
and adjudicate bankruptcy proceedings within the judiciary contributed to the
need for centralized oversight and administration. The creation of the Administrative Office in
1939 established a supervisory agency that was assigned such authority over
bankruptcy referees in 1946 (86). As the
supervisory office, the Administrative Office became the expert on bankruptcy
court operations inclusive of its referees.
This mattered as the Administrative Office and its director serve as the
judiciary’s legislative liaison, providing direct, professional, and expert
advocacy before Congress. As such the
Administrative Office developed the means to influence legislation and,
thereby, affect the scope of judicial authority and the purpose for which that
authority is deployed. Exerting
legislative influence contributes to contemporary judicial independence. Conventionally, judicial independence is
framed through the mechanisms that insulate the courts from inappropriate
external influence. Here, we might think
of independence as constituted by negative safeguards, stopping political
interventions or reprisals. And, yet, we
know that Congress can shape many aspects of the federal courts and their
operations, sending powerful signals about preferred behaviors. Despite these sources of influence, the
Administrative Office and other elements of the administrative wing of the
federal judiciary provide the means to play offense by influencing the
legislative agenda for the courts and shaping the legislation that affects the
courts. This layer of influence that
comes from the building out of judicial administrative capacity enables both
the protection of existing autonomy and capacity and its expansion over time. This can come directly through legislation
that proposes institutional reforms and indirectly when considering
policy-specific reforms like debt relief. Finally,
it is worth drawing attention to how Zackin and Thurston observe not just
state-building within the judiciary but judicially driven state-building. Initially, the Bankruptcy Act of 1898 was
motivated by popular movements, specifically agrarian interests that desired
“debtor-protective features” (81).
Establishing referees that would be in continual operation meant that
these referees could organize and the judiciary could become invested in these
officers facilitating bankruptcy proceedings.
As Zackin and Thurston note, the organized referees helped resist
subsequent efforts to create a bankruptcy-focused administrative agency. Notably, when bankruptcy reform was back on
the legislative agenda in the late 1970s, the Judicial Conference drew upon its
experience and expertise to alter the establishment of an independent
bankruptcy court system and, instead, insisted on bankruptcy courts within the
district court structure.[4] And, notably, some of the Judicial
Conference’s skepticism about the merits of these reforms later surfaced in
Supreme Court decisions (91), requiring Congress to make subsequent legislative
changes that brought the legislative regime closer to the Judicial Conference’s
vision for the bankruptcy courts and their operation. In short, the judiciary’s administrative capacity created the
means to shape and enhance its governing capacity. Excellent
scholarship explores subjects in new ways that illuminate new perspectives and
truths. Excellent scholarship also
identifies threads that future scholars can explore. Zackin and Thurston have accomplished both of
these and The Political Development of
American Debt Relief should be on the reading list of anyone interested in
the politics and policy of debt, political development, and/or judicial
authority and capacity. Bradley
D. Hays is an associate professor of political science at Union College. He can
be reached at haysb@union.edu. [1]
Report of
the Proceedings of the Judicial Conference of the United States. March 1950.
The report cites 648 commissioners versus only 163 authorized referees. [2]
Statement by Assistant Attorney General Fred M. Vinson, Hearings
Before the Subcommittee on Improvements in the Judicial Machinery on S. 3475,
Committee on the Judiciary, United States Senate. Eighty-Ninth Congress, Second Session, 136.
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