Abstract

When a member of the Supreme Court is unable to hear a case, the remaining Justices will occasionally split 4-4 on the case's merits. Normally, such a tie vote translates into a summary affirmance of the lower court ruling, but it remains an open question how the Court should deal with deadlock in the original jurisdiction context, where by definition there is no lower court ruling to affirm. The Court has from its inception lacked a clear and principled approach to original jurisdiction deadlocks (OJDs), and as a result it has dealt awkwardly with those it has confronted in the past. This Comment analyzes the problem of OJDs and proposes a method for resolving them. In particular, it calls for a decision rule that would treat OJDs as not disrupting the status quo ante of the triggering case - an approach that will in most original cases mean upholding the recommendations issued by a court-appointed Special Master.

Comments

118 Yale L.J. 1003 (2009)

Keywords

Original jurisdiction

Date of Authorship for this Version

2009

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