Bradford R. Clark, Ascertaining the Laws of the Several State: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)
Stopped halfway through this lengthy piece. The basic point is that the predictive approach used by federal courts in diversity when there are no state opinions on point raises federalism issues, and thus federal courts should use certification to state supreme courts liberally. There does seem to be some understanding that federal courts are exercising federal power when they sit in diversity.
"If a rule of decision applied in federal court does not constitute a command of the state sovereign, then by default the rule in question is, at least in some sense, a command issued by agents of the federal sovereign. The federal courts' enforcement of such commands appears to contradict a fundamental feature of the constitutional structure recognized in Erie -- namely, that federal courts (which the Constitution places beyond the reach of the political and procedural safeguards of federalism) have 'no power to declare substantive rules of common law applicable in a State.'" (1462-63)
Identifies the constitutional holding of Erie as resting on "mutually reinforcing principles of federalism and separation of powers". (1467)
Because the general common law is, after Erie, just state law, "the precise contours of such law must be fashioned by agents of the state." (1481) But can't we read Erie to say that federal courts sitting in diversity are agents of the state?
Cites Rutherglen for the proposition that federal courts' decisions on "general law" "could be said to make law on behalf of the federal sovereign." (1481-82) But again, I think that implies that Erie didn't change our understanding of how the federal courts act. See immediately preceding paragraph.
"Judicial federalism refers to the lack of constitutional power on the part of the federal courts ... to adopt substantive law applicable in the states." (1482) This is precisely why my argument works -- because if a court rules on a case outside of Congress's authority, it must be "adopting substantive law", and thus violating Erie's conception of judicial federalism.
"Permitting federal courts unilaterally to fashion and apply 'substantive rules of common law applicable to a State' ... would enable federal courts to circumvent the carefully drawn checks and balances that the Constitution establishes to govern the federal government's adoption of 'law applicable in a State.'" (1486) e.g. bicameralism, presentment, state representation in the legislature.
"[F]or the political safeguards of federalism to function as an effective check on the exercise of federal power, the federal government -- including its courts -- must adhere closely to the various constitutional procedures that govern adoption of federal law." (1490)
References
Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671 (1992)
Citing references
Jonathan M. Gutoff, Federal Common Law and Congressional Delegation: A Reconceptualization of Admiralty, 61 U. Pitt. L. Rev. 367 (2000)
Bradford R. Clark, Erie's Constitutional Source, 95 Cal. L. Rev. 1289 (2007)
Wednesday, March 12, 2008
Reconstructing Erie: A Comment on The Perils of Legal Positivism
George Rutherglen, Reconstructing Erie: A Comment on The Perils of Legal Positivism, 10 Const. Comment. 285 (1993)
Quotes Guaranty Trust for proposition that Erie ushered in a new way of looking at law, i.e. positivism.
Says that the argument Brandeis used to overturn Swift v. Tyson was that the federal courts had overstepped their constitutional bounds -- given a limited federal government, and given that the main lawmaking power is given to Congress, "[o]f course the power of the federal courts to make law could not exceed the power of Congress ... ." (287)
Notes the famous Wechsler argument about the political safeguards of federalism, and notes that such safeguards don't exist for the courts -- there is no state representation in the federal court system. "Any major extension of federal power must finds its source in the Constitution or in a federal statute, not in the common law decisions of federal judges alone." Therefore, "[t]his argument is the best current account of Erie as a fundamental principle of federalism."
"General common law violates [the requirement that judicial decisions be back by the power of the state] because it is based on the law of no particular sovereign. Brandeis departed from Swift v. Tyson then, in insisting that the general common law recognized in the federal courts must be federal law. And once this step was taken, it was necessary to find some source for the federal general common law in the Constitution. Because Brandeis could find no such source, he concluded that there was 'no federal general common law.'" (291-92)
"[The positivist argument of Erie] cannot stand alone without falling of its own weight. It must therefore be supported by other arguments of constitutional structure." (295)
References
Guaranty Trust Co. v. York, 326 US 99 (1945)
John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974)
Paul J. Mishkin, Some Further Last Words on Erie -- The Thread, 87 Harv. L. Rev. 1682 (1974)
Citing references
Jack Goldsmith & Steven Walt, Erie and Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998)
Quotes Guaranty Trust for proposition that Erie ushered in a new way of looking at law, i.e. positivism.
Says that the argument Brandeis used to overturn Swift v. Tyson was that the federal courts had overstepped their constitutional bounds -- given a limited federal government, and given that the main lawmaking power is given to Congress, "[o]f course the power of the federal courts to make law could not exceed the power of Congress ... ." (287)
Notes the famous Wechsler argument about the political safeguards of federalism, and notes that such safeguards don't exist for the courts -- there is no state representation in the federal court system. "Any major extension of federal power must finds its source in the Constitution or in a federal statute, not in the common law decisions of federal judges alone." Therefore, "[t]his argument is the best current account of Erie as a fundamental principle of federalism."
"General common law violates [the requirement that judicial decisions be back by the power of the state] because it is based on the law of no particular sovereign. Brandeis departed from Swift v. Tyson then, in insisting that the general common law recognized in the federal courts must be federal law. And once this step was taken, it was necessary to find some source for the federal general common law in the Constitution. Because Brandeis could find no such source, he concluded that there was 'no federal general common law.'" (291-92)
"[The positivist argument of Erie] cannot stand alone without falling of its own weight. It must therefore be supported by other arguments of constitutional structure." (295)
References
Guaranty Trust Co. v. York, 326 US 99 (1945)
John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974)
Paul J. Mishkin, Some Further Last Words on Erie -- The Thread, 87 Harv. L. Rev. 1682 (1974)
Citing references
Jack Goldsmith & Steven Walt, Erie and Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998)
Tuesday, March 11, 2008
US v. Johnson
U.S. v. Johnson, 194 F.3d 657 (5th Cir. 1999)
Johnson burned down a church, pled guilty, then challenged the conviction on the grounds that the jurisdictional element (interstate commerce) wasn't met. Judge Benavides, citing Rea and Robinson, with no analysis, said that the JE was not a prerequisite to SMJ, but merely an element of the offense.
References
US v. Rea, 169 F.3d 1111 (8th Cir. 1999)
US v. Robinson, 119 F.3d 1205 (5th Cir. 1997)
Citing references
US v. Reasor, 418 F.3d 466 (5th Cir. 2005)
US v. Nukida, 8 F.3d 665 (9th Cir. 1993)
US v. Barone, 71 F.3d 1442 (9th Cir. 1995)
U.S. v. Bustos-Useche, 273 F.3d 622 (5th Cir. 2001)
Johnson burned down a church, pled guilty, then challenged the conviction on the grounds that the jurisdictional element (interstate commerce) wasn't met. Judge Benavides, citing Rea and Robinson, with no analysis, said that the JE was not a prerequisite to SMJ, but merely an element of the offense.
References
US v. Rea, 169 F.3d 1111 (8th Cir. 1999)
US v. Robinson, 119 F.3d 1205 (5th Cir. 1997)
Citing references
US v. Reasor, 418 F.3d 466 (5th Cir. 2005)
US v. Nukida, 8 F.3d 665 (9th Cir. 1993)
US v. Barone, 71 F.3d 1442 (9th Cir. 1995)
U.S. v. Bustos-Useche, 273 F.3d 622 (5th Cir. 2001)
The Jurisdictional Label: Use and Misuse
Alex Lees, Note, The Jurisdictional Label: Use and Misuse, 58 Stan. L. Rev. 1457 (2006)
Actually comes rather close to what I want to say. But remember ML's advice.
Key to "jurisdictionality" for Lees is that jurisdictional limits are those that define institutions and make them unique. This applies, then, to distinctions between the state courts and federal courts; the legislature and the courts; and the trial and appellate courts. Unfortunately, Lees doesn't do a great job explaining why this should be so. It isn't a constitutional argument, nor is it one of those classic "here's the unstated principle that underlies all these cases and thus unifies them" arguments.
Perhaps most importantly, the Note ends up undermined by Arbaugh, which ends up saying that jurisdictional limits are just those that Congress says are such. This perhaps highlights an already existing problem with the piece rather than creates one: Congress always could take away the jurisdiction of the federal courts in almost any way imaginable (put aside all the arguments about this on Equal Protection grounds and whatnot). It's not really clear how the argument would deal with Congress just making an arbitrary limit in a statute jurisdictional, a limit that has nothing to do with separation of powers or federalism.
Actually comes rather close to what I want to say. But remember ML's advice.
Key to "jurisdictionality" for Lees is that jurisdictional limits are those that define institutions and make them unique. This applies, then, to distinctions between the state courts and federal courts; the legislature and the courts; and the trial and appellate courts. Unfortunately, Lees doesn't do a great job explaining why this should be so. It isn't a constitutional argument, nor is it one of those classic "here's the unstated principle that underlies all these cases and thus unifies them" arguments.
Perhaps most importantly, the Note ends up undermined by Arbaugh, which ends up saying that jurisdictional limits are just those that Congress says are such. This perhaps highlights an already existing problem with the piece rather than creates one: Congress always could take away the jurisdiction of the federal courts in almost any way imaginable (put aside all the arguments about this on Equal Protection grounds and whatnot). It's not really clear how the argument would deal with Congress just making an arbitrary limit in a statute jurisdictional, a limit that has nothing to do with separation of powers or federalism.
The Federalist #80
The Federalist #80 (Hamilton)
Hamilton argues that the courts' power must be coextensive with the legislature's, but he argues this in the positive direction, not the negative direction that I want to argue. That is, he argues that the court's should not be more limited than the legislature, whereas I argue that the court's must be as limited as the legislature.
Hamilton argues that the courts' power must be coextensive with the legislature's, but he argues this in the positive direction, not the negative direction that I want to argue. That is, he argues that the court's should not be more limited than the legislature, whereas I argue that the court's must be as limited as the legislature.
The Federalist #51
The Federalist #51 (Madison)
The key quote that other sources seem to have referred to is: "In republican government, the legislative authority necessarily predominates." But note! Madison is not saying this as something we ought to strive toward, but as a problem! The very next sentence begins, "The remedy for this inconveniency ... ."
Given that the real aim of that statement is to set out something to fight against, I'm not sure this piece does the work I hoped it might, viz. establishes that the judiciary must be subordinated to the legislature. On the other hand, I guess Madison wouldn't disagree with that as a descriptive matter.
The key quote that other sources seem to have referred to is: "In republican government, the legislative authority necessarily predominates." But note! Madison is not saying this as something we ought to strive toward, but as a problem! The very next sentence begins, "The remedy for this inconveniency ... ."
Given that the real aim of that statement is to set out something to fight against, I'm not sure this piece does the work I hoped it might, viz. establishes that the judiciary must be subordinated to the legislature. On the other hand, I guess Madison wouldn't disagree with that as a descriptive matter.
In Search of Removal Jurisdiction
Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 1 (2008)
Overall, it's not on point for me, but there are a few passages that are interesting:
"As 'power', jurisdiction embodies societal values, such as federalism, separation of powers, and a limited national government." (5)
"Jurisdictional rules ... protect the larger societal interests discussed above, even when they are not deemed worthy of protection by the litigants." (6)
"[T]he confusion between merits and jurisdiction is often grounded in a misconception of whose jurisdiction is at issue. Congress must be wary of its own authority to legislate. ... Congress is bound by that requirement when legislating under its Commerce Clause powers. It is not so bound when legislating under its Article III powers to control the lower courts." (16)
This is precisely what I disagree with, that Congress is not limited under Article I in granting jurisdiction. I don't see the Article III power as a separate power, unlimited by the Article I limits (common law making, whole-government federalism).
Note that this passage cites Wasserman's article, where he presents the same "jurisdiction of courts and Congress are different beasts" argument that I disagree with. Note further that this last statement, that Congress is not bound when legislating under the Article III powers, isn't footnoted.
Overall, it's not on point for me, but there are a few passages that are interesting:
"As 'power', jurisdiction embodies societal values, such as federalism, separation of powers, and a limited national government." (5)
"Jurisdictional rules ... protect the larger societal interests discussed above, even when they are not deemed worthy of protection by the litigants." (6)
"[T]he confusion between merits and jurisdiction is often grounded in a misconception of whose jurisdiction is at issue. Congress must be wary of its own authority to legislate. ... Congress is bound by that requirement when legislating under its Commerce Clause powers. It is not so bound when legislating under its Article III powers to control the lower courts." (16)
This is precisely what I disagree with, that Congress is not limited under Article I in granting jurisdiction. I don't see the Article III power as a separate power, unlimited by the Article I limits (common law making, whole-government federalism).
Note that this passage cites Wasserman's article, where he presents the same "jurisdiction of courts and Congress are different beasts" argument that I disagree with. Note further that this last statement, that Congress is not bound when legislating under the Article III powers, isn't footnoted.
Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell
Perry Dane, Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell, 102 Nw. U. L. Rev. Colloquy 164 (2008)
More on Bowles, and more that's not relevant to me.
More on Bowles, and more that's not relevant to me.
The Failure of Bowles v. Russell
Scott Dodson, The Failure of Bowles v. Russell
(I think I got this from SSRN.)
Dodson wants to chart the middle course in Bowles: mandatory, but not jurisdictional. This is even further from my topic than some of the other articles in this line.
(I think I got this from SSRN.)
Dodson wants to chart the middle course in Bowles: mandatory, but not jurisdictional. This is even further from my topic than some of the other articles in this line.
Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy
Howard M. Wasserman, Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy, 102 Nw. U. L. Rev. Colloquy 215 (2008)
Not apparently useful -- talks about the three titular objects each in comparison with the other, but nothing really applicable to me.
Not apparently useful -- talks about the three titular objects each in comparison with the other, but nothing really applicable to me.
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