October 2008 Vol. 107 No. 1 THE REVIEW
ARTICLES

Judicial Compensation and the Definition of Judicial Power in the Early Republic

James E. Pfander

Article III’s provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III’s compensation provision have largely escaped notice. In particular, little attention has been paid to the framers’ apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III’s presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction. This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic.

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Optimal Political Control of the Bureaucracy

Matthew C. Stephenson
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NOTES

Limiting a Constitutional Tort Without Probable Cause: First Amendment Retaliatory Arrest After Hartman

Colin P. Watson

Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are “easy to allege and hard to disprove,” they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory prosecution must plead and prove a lack of probable cause for pressing the underlying charge as an element of their claim.

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“Now For a Clean Sweep!”: Smiley v. Holm, Partisan Gerrymandering, and At-Large Congressional Elections

Benedict J. Schweigert
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