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.
The Dubious Concept of Jurisdiction
Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)
I think this was interesting, and it might even be correct as far as it goes, but "as far as it goes" doesn't seem to reach the Constitution -- Lee argues that jurisdictionality should be determined by policy and equity, not by abstract labels and appeals to the "nature" of the concept of jurisdiction. The argument thus harks back to some of the great pieces from MLP, like Hohfeld or Llewellyn. Thus it isn't clear what direct relevance this paper has. Perhaps as part of the Dodson / Wasserman series of articles that are obsessed with jurisdiction, but not the constitutional aspect, only the "Congress limiting the courts" aspect.
I think this was interesting, and it might even be correct as far as it goes, but "as far as it goes" doesn't seem to reach the Constitution -- Lee argues that jurisdictionality should be determined by policy and equity, not by abstract labels and appeals to the "nature" of the concept of jurisdiction. The argument thus harks back to some of the great pieces from MLP, like Hohfeld or Llewellyn. Thus it isn't clear what direct relevance this paper has. Perhaps as part of the Dodson / Wasserman series of articles that are obsessed with jurisdiction, but not the constitutional aspect, only the "Congress limiting the courts" aspect.
Is Citizen Suit Notice Jurisdictional and Why Does it Matter?
Karl S. Coplan, Is Citizen Suit Notice Jurisdictional and Why Does it Matter?, 10 Widener L. Rev. 49 (2003)
Not useful -- very specific question, narrow answer, non-constitutional, etc.
Not useful -- very specific question, narrow answer, non-constitutional, etc.
Bowles v. Russell
Bowles v. Russell, 551 U.S. ___ (2007)
As stated here, Bowles says that time limits are jurisdictional. Thomas writes one of his characteristically short, snappish opinions. Among other things, Thomas quotes Kontrick stating that "only Congress may determine a lower federal court's subject-matter jurisdiction." This isn't as unfortunate a statement as it may seem because Thomas's point is that Congress is the only institution that can determine SMJ -- he clearly doesn't mean, can't mean, that literally Congress determines SMJ: the Constitution, after all, has something to say about it.
Thomas's argument basically comes down to a distinction between "court-promulgated rules and limits enacted by Congress." This, of course, can't mean all that it says -- not every Congressional limit is jurisdictional. If that were so, then Arbaugh was just overruled. The employee-numerosity requirement, after all, is a "limit".
In any case, as I stated in the linked comment above, this case may be useful insofar as it stands for the idea that these issues of jurisdictionality are not settled, despite Arbaugh, and thus arguments about what the courts should treat as jurisdictional are still worth making.
As stated here, Bowles says that time limits are jurisdictional. Thomas writes one of his characteristically short, snappish opinions. Among other things, Thomas quotes Kontrick stating that "only Congress may determine a lower federal court's subject-matter jurisdiction." This isn't as unfortunate a statement as it may seem because Thomas's point is that Congress is the only institution that can determine SMJ -- he clearly doesn't mean, can't mean, that literally Congress determines SMJ: the Constitution, after all, has something to say about it.
Thomas's argument basically comes down to a distinction between "court-promulgated rules and limits enacted by Congress." This, of course, can't mean all that it says -- not every Congressional limit is jurisdictional. If that were so, then Arbaugh was just overruled. The employee-numerosity requirement, after all, is a "limit".
In any case, as I stated in the linked comment above, this case may be useful insofar as it stands for the idea that these issues of jurisdictionality are not settled, despite Arbaugh, and thus arguments about what the courts should treat as jurisdictional are still worth making.
Jurisdictionality and Bowles v. Russell
Scott Dodson, Jurisdictionality and Bowles v. Russell, 102 Nw. U. L. Colloqy 42 (2007)
Just basically a note on Bowles v. Russell, which holds that time limits are jurisdictional. It's a preposterous decision, 5-4, conservatives over liberals, but it utterly ignores Arbaugh.
That said, this article isn't really relevant to me now. The case might be as an example of how even Arbaugh, with its categorical rule, hasn't actually settled these questions, that there might be more room for debate on these issues.
Just basically a note on Bowles v. Russell, which holds that time limits are jurisdictional. It's a preposterous decision, 5-4, conservatives over liberals, but it utterly ignores Arbaugh.
That said, this article isn't really relevant to me now. The case might be as an example of how even Arbaugh, with its categorical rule, hasn't actually settled these questions, that there might be more room for debate on these issues.
Monday, March 3, 2008
Misguided Federalism
Peter J. Henning, Misguided Federalism, 68 Mo. L. Rev. 389 (2003)
There were apparently a spate of cases saying that prosecuting people under federal statutes with jurisdictional elements when the jurisdictional element wasn't met was a violation of the executive power. Henning argues that this is "misguided". He says that federalism limits just don't apply to the executive's power to apply the law.
Note how this is different from the treaty power stuff discussed below: the power to apply the law isn't one of those things listed in Section 2; thus I disagree with Henning because I think the executive's other powers, the non-Section 2 powers, are subservient to the legislative powers and thus are limited in the same way. If Congress cannot legislate beyond the bounds of interstate commerce, how can the Dept. of Justice claim the authority to prosecute people outside those bounds? (Not just statutory authority, note, but Constitutional authority.)
"Federalism is an issue of congressional power to enact regulations that operate on the states directly in their role as sovereigns, and not one of whether the federal government can exercise its power over individuals." (399)
Henning phrases the executive's power as being one to apply valid laws. Thus, since these laws with jurisdictional elements are valid, the executive can apply them. But that's taking a pure facial perspective on things. Look at this from the as-applied perspective -- laws aren't valid or not valid, they can be used validly and invalidly. In this case, the question is whether the executive is using the law validly, i.e. whether it's constitutional to apply the law to this particular defendant. If that defendant doesn't meet the jurisdictional element, I say "no". (Here is where O'Connor's argument about Lopez and Morrison merely being "drafting guides" comes in -- if Henning's argument is right, if all Congress need do is put in a jurisdictional element and then let the whole world run its course, then those cases really do become drafting guides, not actual limitations on federal power. (Of course, as a practical matter, the limits are real, because a case outside the jurisdictional element will be dismissed, on the grounds of failure to state a claim or the equivalent in the criminal context. But that doesn't mean that we should ignore the structural problems created by corner cases.))
Henning also oddly seems to separate the idea of "federalism" from the Commerce Clause -- I've conceived of the Commerce Clause as one of many implementations, in the Constitution and elsewhere, of the concept of federalism. It's not clear why Henning treats them as seemingly distinct entities. (Or maybe I've overread his language to mean something it doesn't.) He talks about the language about "truly local vs. truly national" as being about federalism, and economic language as being about commerce. I, on the other hand, had always read the "truly local" language as merely being a restatement of the limitation that Commerce imposes, that is that Congress can't reach the "truly local" because it isn't involved in interstate commerce. There's reasonable disagreement to be had there. Similarly, the language about family law and violent crimes being beyond federal reach I read as statements that these things fall outside the Commerce power, not that they are outside of federal reach because of some nontextual federalism reasons, which is how Henning reads that language.
Henning reads Lopez's request for a jurisdictional element as wanting to "provide[] some measure of comfort that the particular prosecution embodies the interests of the national government." (430) Again, I disagree -- I think the value of jurisdictional elements is in the fact that they provide an ironclad guarantee that the federal power will not be exceeded, not by Congress, not by the courts, and not by the executive.
There were apparently a spate of cases saying that prosecuting people under federal statutes with jurisdictional elements when the jurisdictional element wasn't met was a violation of the executive power. Henning argues that this is "misguided". He says that federalism limits just don't apply to the executive's power to apply the law.
Note how this is different from the treaty power stuff discussed below: the power to apply the law isn't one of those things listed in Section 2; thus I disagree with Henning because I think the executive's other powers, the non-Section 2 powers, are subservient to the legislative powers and thus are limited in the same way. If Congress cannot legislate beyond the bounds of interstate commerce, how can the Dept. of Justice claim the authority to prosecute people outside those bounds? (Not just statutory authority, note, but Constitutional authority.)
"Federalism is an issue of congressional power to enact regulations that operate on the states directly in their role as sovereigns, and not one of whether the federal government can exercise its power over individuals." (399)
Henning phrases the executive's power as being one to apply valid laws. Thus, since these laws with jurisdictional elements are valid, the executive can apply them. But that's taking a pure facial perspective on things. Look at this from the as-applied perspective -- laws aren't valid or not valid, they can be used validly and invalidly. In this case, the question is whether the executive is using the law validly, i.e. whether it's constitutional to apply the law to this particular defendant. If that defendant doesn't meet the jurisdictional element, I say "no". (Here is where O'Connor's argument about Lopez and Morrison merely being "drafting guides" comes in -- if Henning's argument is right, if all Congress need do is put in a jurisdictional element and then let the whole world run its course, then those cases really do become drafting guides, not actual limitations on federal power. (Of course, as a practical matter, the limits are real, because a case outside the jurisdictional element will be dismissed, on the grounds of failure to state a claim or the equivalent in the criminal context. But that doesn't mean that we should ignore the structural problems created by corner cases.))
Henning also oddly seems to separate the idea of "federalism" from the Commerce Clause -- I've conceived of the Commerce Clause as one of many implementations, in the Constitution and elsewhere, of the concept of federalism. It's not clear why Henning treats them as seemingly distinct entities. (Or maybe I've overread his language to mean something it doesn't.) He talks about the language about "truly local vs. truly national" as being about federalism, and economic language as being about commerce. I, on the other hand, had always read the "truly local" language as merely being a restatement of the limitation that Commerce imposes, that is that Congress can't reach the "truly local" because it isn't involved in interstate commerce. There's reasonable disagreement to be had there. Similarly, the language about family law and violent crimes being beyond federal reach I read as statements that these things fall outside the Commerce power, not that they are outside of federal reach because of some nontextual federalism reasons, which is how Henning reads that language.
Henning reads Lopez's request for a jurisdictional element as wanting to "provide[] some measure of comfort that the particular prosecution embodies the interests of the national government." (430) Again, I disagree -- I think the value of jurisdictional elements is in the fact that they provide an ironclad guarantee that the federal power will not be exceeded, not by Congress, not by the courts, and not by the executive.
All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806
William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 990 (2001)
Another shot across the bow in the texualism, originalism, living constitution debates. "Judicial power" is asked about to question whether judges have the power to read statutes in particular ways. I didn't get past the introduction, since it's a long piece, and it's not clear how helpful it'll actually be.
Another shot across the bow in the texualism, originalism, living constitution debates. "Judicial power" is asked about to question whether judges have the power to read statutes in particular ways. I didn't get past the introduction, since it's a long piece, and it's not clear how helpful it'll actually be.
Abstention and the Constitutional Limits of the Judicial Power of the United States
Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. Rev. 811 (1991)
Argues that the abstention doctrines are really the Court enforcing the concept of dual sovereignty (i.e. federalism) on itself. This supports my position to the extent that I need to show that the Court does need to consider federalism when it acts, i.e. that federalism ain't just for Congress.
Citing references
Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 Cal. L. Rev. 613 (1999)
Bradford C. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)
Argues that the abstention doctrines are really the Court enforcing the concept of dual sovereignty (i.e. federalism) on itself. This supports my position to the extent that I need to show that the Court does need to consider federalism when it acts, i.e. that federalism ain't just for Congress.
Citing references
Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 Cal. L. Rev. 613 (1999)
Bradford C. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)
"Arising Under" Jurisdiction in the Federalism Renaissance: Verizon Maryland Inc. v. Public Service Commission of Maryland
Michelle Reed, Note, "Arising Under" Jurisdiction in the Federalism Renaissance: Verizon Maryland Inc. v. Public Service Commission of Maryland, 2002 B.Y.U. L. Rev. 717 (2002)
Completely irrelevant to what I'm doing. But here's a good line: "The federal circuits are deeply splintered on nearly all issues." I'll say!
Completely irrelevant to what I'm doing. But here's a good line: "The federal circuits are deeply splintered on nearly all issues." I'll say!
More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional
Brian W. Portugal, Note, More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional, 56 Baylor L. Rev. 1019 (2004)
Points out that SMJ is a constitutionally based doctrine, but then only performs a statutory interpretation analysis to determine whether the forum defendant rule should be considered constitutional. It thus isn't that interesting for me except as an example of "yet another jurisdictionality paper".
(Cited in a petition for a writ of cert. in a forum defendant case! (Writ denied.))
Points out that SMJ is a constitutionally based doctrine, but then only performs a statutory interpretation analysis to determine whether the forum defendant rule should be considered constitutional. It thus isn't that interesting for me except as an example of "yet another jurisdictionality paper".
(Cited in a petition for a writ of cert. in a forum defendant case! (Writ denied.))
Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine
Katherine Florey, Note, Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine, 92 Cal. L. Rev. 1375 (2004)
I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.
Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.
I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.
Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.
Executing the Treaty Power
Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005)
Argues against Missouri v. Holland's view that Congress has the power to execute any treaty the President enters the country into, even if Congress wouldn't have the power to create that law without the existence of a treaty. This is problematic to Rosenkranz (and I agree) because the executive is unchained from Constitutional limits when negotiating treaties.
It's quite a good article, persuasively argued, and it made me think twice about arguing that the executive should in fact be limited when negotiating treaties. He gives a sort of doomsday example where the U.S. is losing a disastrous war when it is offered a peace treaty that would be fine except it violates the Fifth Amendment (or something -- Rosenkranz's example has something about using military commissions to try civilians). If the President could not enter such a treaty, then the familiar adage that the Constitution is not a suicide pact would be violated. I'd rather consider the example of the Constitutional violation being structural rather than individual-rights based (or internal rather than external), but the argument is the same -- we must allow the President to enter into these treaties.
So the question for me becomes, "How can the President be unchained from Article I limits in negotiating treaties if I am arguing that the courts are not so unchained when executing the judicial power?" The answer I have is that the President has a set of powers, conveniently located in Section 2 of Article II, that are not subsidiary to the legislative powers. That is, the executive has the basic duty to execute the law, but it also has certain other enumerated powers, including appointments and pardons. The judiciary, by contrast, has no power that is not subsidiary to the legislative powers. Thus it makes sense to limit the judiciary's actions by reference to the Article I limits while not doing the same when the executive exercises its Art. II, Section 2 powers.
(This subsidiary argument also derives from Rosenkranz's paper -- see 1895.)
Citing references
Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327 (2006)
Argues against Missouri v. Holland's view that Congress has the power to execute any treaty the President enters the country into, even if Congress wouldn't have the power to create that law without the existence of a treaty. This is problematic to Rosenkranz (and I agree) because the executive is unchained from Constitutional limits when negotiating treaties.
It's quite a good article, persuasively argued, and it made me think twice about arguing that the executive should in fact be limited when negotiating treaties. He gives a sort of doomsday example where the U.S. is losing a disastrous war when it is offered a peace treaty that would be fine except it violates the Fifth Amendment (or something -- Rosenkranz's example has something about using military commissions to try civilians). If the President could not enter such a treaty, then the familiar adage that the Constitution is not a suicide pact would be violated. I'd rather consider the example of the Constitutional violation being structural rather than individual-rights based (or internal rather than external), but the argument is the same -- we must allow the President to enter into these treaties.
So the question for me becomes, "How can the President be unchained from Article I limits in negotiating treaties if I am arguing that the courts are not so unchained when executing the judicial power?" The answer I have is that the President has a set of powers, conveniently located in Section 2 of Article II, that are not subsidiary to the legislative powers. That is, the executive has the basic duty to execute the law, but it also has certain other enumerated powers, including appointments and pardons. The judiciary, by contrast, has no power that is not subsidiary to the legislative powers. Thus it makes sense to limit the judiciary's actions by reference to the Article I limits while not doing the same when the executive exercises its Art. II, Section 2 powers.
(This subsidiary argument also derives from Rosenkranz's paper -- see 1895.)
Citing references
Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327 (2006)
Thursday, February 21, 2008
The Federal Courts in the Political Order
Martin Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory
Argument is mainly centered around illegitimate judicial lawmaking with regard to jurisdiction, e.g. abstention, federal common law, etc. That's kind of orthogonal to my issue, of illegitimate grants / exercises of federal judicial power.
Argument is mainly centered around illegitimate judicial lawmaking with regard to jurisdiction, e.g. abstention, federal common law, etc. That's kind of orthogonal to my issue, of illegitimate grants / exercises of federal judicial power.
Sunday, February 17, 2008
Jurisdiction and Merits
Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev. 643 (2005)
I disagree heartily with Wasserman here. He takes a hard-line, no-way-is-this-jurisdictional approach to Title VII's employee-numerosity requirement, which is probably right as a matter of statutory interpretation, but his general discussion doesn't mention the Constitution and the relation of SMJ to limits on federal power.
For instance, he points out that the distinction between jurisdiction and merits has "primarily practical consequences" and also has "formalist consequences" (645), but does not mention the Constitution. The "formalist consequences" are merely those of "treating distinct legal concepts in a distinct manner" (which of course may or may not have any actual value, which is tied up in the pejorative (at least the way Wasserman uses it) label "formalist").
Wasserman sees jurisdictional elements as "establish[ing] legislative power to create a cause of action, but [they] have nothing to do with judicial authority to adjudicate that cause of action." (646) This seems to me to beg the question -- a jurisdictional element may or may not actually be jurisdictional. Whether it is depends on whether that element actually goes to judicial authority. The Title VII employee-numerosity requirement doesn't. The "in interstate commerce" portions of the Sherman Act, Title VII, or numerous other statutes, in my conception, does.
"Jurisdictional elements are about congressional jurisdiction ... . Jurisdictional elements have nothing to do with judicial jurisdiction ... ." 684
"If every statutory element reflects legislative choice, there is no justification for treating one choice ... as jurisdictional while treating all other choices ... as merits-based." (691) This is true enough, but the point is that the condition isn't satisfied: not every statutory element does reflect pure legislative choice -- some reflect the necessity to keep legislation within constitutional bounds.
Wasserman defines SMJ this way: "a court's constitutional and statutory power or authority to entertain, hear, decide, and resolve a legal or factual dispute in favor of one party or the other."
W also makes the argument that it's silly for something to be about SMJ in federal court but then not in state court. That's probably the best argument against my position, that a dismissal of a Title VII claim in state court would be for a different reason (failure to state a claim) than in federal court (SMJ). That said, just because the reasons are different doesn't mean this is bad. It's just a little weird. In fact, if you really dig down, maybe it's not so weird after all, because what is the court doing in each case? In the federal case, the court is saying, "We don't have power to hear this case because Congress doesn't have power to give us this case." In the state case, the court is saying, "You failed to state a claim because Congress doesn't have the power to reach that claim." In both cases, the point is that Congress couldn't reach the conduct the plaintiff is aiming at (in the Title VII case, that means discrimination by an employer in an industry not affecting interstate commerce). That the reaction to the fact that Congress didn't have such power is different in the different courts is only natural when you consider that the federal courts are different from the state courts, by Constitutional design!
References
Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004)
Davis v. Passman, 442 U.S. 228 (1979)
Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)
John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513 (1998)
Kevin M. Clermont, Jurisdictional Fact (no citation; it wasn't published at the time)
Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953)
Hartford Fire Ins. Co. v. California, 509 U.S. 764 (Scalia, J., dissenting)
Hagans v. Lavine, 415 U.S. 528 (1974)
Rhode Island v. Massachusetts, 37 U.S. 657 (1838)
Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)
Joan Steinman, After Steel Co.: "Hypothetical Jurisdiction" in the Federal Appellate Courts, 58 Wash. & Lee L. Rev. 855 (2001)
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)
Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987)
Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)
McLain v. Real Estate Board of New Orleans, 444 U.S. 232 (1980)
Stephen Calkins, The 1990-91 Supreme Court Term and Antitrust: Toward Greater Certainty, 60 Antitrust L.J. 603 (1991)
Roxane C. Busey & Peter B. Freeman, The View From the Summit: Jurisdiction and Beyond, 60 Antitrust L.J. 725 (1991)
Citing references
Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006)
Tara M. Stuckey, Note, Jurisdictional Hooks in the Wake of Raich: On Properly Interpreting Federal Regulations of Interstate Commerce, 81 Notre Dame L. Rev. 2101 (2006)
I disagree heartily with Wasserman here. He takes a hard-line, no-way-is-this-jurisdictional approach to Title VII's employee-numerosity requirement, which is probably right as a matter of statutory interpretation, but his general discussion doesn't mention the Constitution and the relation of SMJ to limits on federal power.
For instance, he points out that the distinction between jurisdiction and merits has "primarily practical consequences" and also has "formalist consequences" (645), but does not mention the Constitution. The "formalist consequences" are merely those of "treating distinct legal concepts in a distinct manner" (which of course may or may not have any actual value, which is tied up in the pejorative (at least the way Wasserman uses it) label "formalist").
Wasserman sees jurisdictional elements as "establish[ing] legislative power to create a cause of action, but [they] have nothing to do with judicial authority to adjudicate that cause of action." (646) This seems to me to beg the question -- a jurisdictional element may or may not actually be jurisdictional. Whether it is depends on whether that element actually goes to judicial authority. The Title VII employee-numerosity requirement doesn't. The "in interstate commerce" portions of the Sherman Act, Title VII, or numerous other statutes, in my conception, does.
"Jurisdictional elements are about congressional jurisdiction ... . Jurisdictional elements have nothing to do with judicial jurisdiction ... ." 684
"If every statutory element reflects legislative choice, there is no justification for treating one choice ... as jurisdictional while treating all other choices ... as merits-based." (691) This is true enough, but the point is that the condition isn't satisfied: not every statutory element does reflect pure legislative choice -- some reflect the necessity to keep legislation within constitutional bounds.
Wasserman defines SMJ this way: "a court's constitutional and statutory power or authority to entertain, hear, decide, and resolve a legal or factual dispute in favor of one party or the other."
W also makes the argument that it's silly for something to be about SMJ in federal court but then not in state court. That's probably the best argument against my position, that a dismissal of a Title VII claim in state court would be for a different reason (failure to state a claim) than in federal court (SMJ). That said, just because the reasons are different doesn't mean this is bad. It's just a little weird. In fact, if you really dig down, maybe it's not so weird after all, because what is the court doing in each case? In the federal case, the court is saying, "We don't have power to hear this case because Congress doesn't have power to give us this case." In the state case, the court is saying, "You failed to state a claim because Congress doesn't have the power to reach that claim." In both cases, the point is that Congress couldn't reach the conduct the plaintiff is aiming at (in the Title VII case, that means discrimination by an employer in an industry not affecting interstate commerce). That the reaction to the fact that Congress didn't have such power is different in the different courts is only natural when you consider that the federal courts are different from the state courts, by Constitutional design!
References
Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004)
Davis v. Passman, 442 U.S. 228 (1979)
Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)
John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513 (1998)
Kevin M. Clermont, Jurisdictional Fact (no citation; it wasn't published at the time)
Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953)
Hartford Fire Ins. Co. v. California, 509 U.S. 764 (Scalia, J., dissenting)
Hagans v. Lavine, 415 U.S. 528 (1974)
Rhode Island v. Massachusetts, 37 U.S. 657 (1838)
Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)
Joan Steinman, After Steel Co.: "Hypothetical Jurisdiction" in the Federal Appellate Courts, 58 Wash. & Lee L. Rev. 855 (2001)
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)
Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987)
Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)
McLain v. Real Estate Board of New Orleans, 444 U.S. 232 (1980)
Stephen Calkins, The 1990-91 Supreme Court Term and Antitrust: Toward Greater Certainty, 60 Antitrust L.J. 603 (1991)
Roxane C. Busey & Peter B. Freeman, The View From the Summit: Jurisdiction and Beyond, 60 Antitrust L.J. 725 (1991)
Citing references
Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006)
Tara M. Stuckey, Note, Jurisdictional Hooks in the Wake of Raich: On Properly Interpreting Federal Regulations of Interstate Commerce, 81 Notre Dame L. Rev. 2101 (2006)
Jurisdiction, Merits, and Substantiality
Howard M. Wasserman, Jurisdiction, Merits, and Substantiality, 42 Tulsa L. Rev. 579 (2007)
To the extent it's useful to me, it's duplicative of what's in Wasserman's other paper.
To the extent it's useful to me, it's duplicative of what's in Wasserman's other paper.
Is Jurisdiction Jurisdictional?
Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?, 95 Nw. U. L. Rev. 1207 (2001)
Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.
"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208
Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211
"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12
"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274
References
Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)
Cohens v. Virginia, 19 U.S. 264 (1821)
Ex parte McCardle, 74 U.S. 506 (1868)
The Federalist No. 80 (Alexander Hamilton)
Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.
"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208
Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211
"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12
"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274
References
Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)
Cohens v. Virginia, 19 U.S. 264 (1821)
Ex parte McCardle, 74 U.S. 506 (1868)
The Federalist No. 80 (Alexander Hamilton)
Ruhrgas
Ruhrgas v. Marathon Oil, 526 U.S. 574 (1999)
Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.
Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.
References
5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?
Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.
Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.
References
5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?
Steel Co.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.
Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94
Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101
Finally: "For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." 101-02
Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).
References
Bell v. Hood, 327 U.S. 678 (1946)
Mitchell v. Maurer, 293 U.S. 237 (1934)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)
United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)
Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)
Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)
Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)
Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.
Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94
Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101
Finally: "For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." 101-02
Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).
References
Bell v. Hood, 327 U.S. 678 (1946)
Mitchell v. Maurer, 293 U.S. 237 (1934)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)
United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)
Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)
Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)
Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)
City of Boerne
City of Boerne v. Flores, 521 U.S. 507 (1997)
Congress can't define the meaning of the Constitution or expand its other powers using Section Five of the Fourteenth Amendment. This probably isn't relevant.
Congress can't define the meaning of the Constitution or expand its other powers using Section Five of the Fourteenth Amendment. This probably isn't relevant.
Leroy v. Great Western
Leroy v. Great Western United Corp., 443 U.S. 173 (1979)
Justice Stevens refers to SMJ as "fundamentally preliminary" because it is an "absolute stricture on the court". 180
References
Olberding v. Illinois Central R. Co., 346 U.S. 338 (????)
Neirbo Co. v. Bethlehem Corp., 308 U.S. 165 (????)
Justice Stevens refers to SMJ as "fundamentally preliminary" because it is an "absolute stricture on the court". 180
References
Olberding v. Illinois Central R. Co., 346 U.S. 338 (????)
Neirbo Co. v. Bethlehem Corp., 308 U.S. 165 (????)
U.S. v. Hudson and Goodwin
United States v. Hudson and Goodwin, 11 U.S. 32 (1812)
If there's no statute granting jurisdiction to the federal court, then there's no jurisdiction, end of story. There are certain implied powers (to fine for contempt is mentioned; "jurisdiction to determine jurisdiction" is not but is likely included), but these "are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others ... ." 34
If there's no statute granting jurisdiction to the federal court, then there's no jurisdiction, end of story. There are certain implied powers (to fine for contempt is mentioned; "jurisdiction to determine jurisdiction" is not but is likely included), but these "are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others ... ." 34
J.I. Case v. Borak
J.I. Case Co. v. Borak, 377 U.S. 426 (1964)
Federal courts have the power to grant remedial relief where they have jurisdiction -- it's not clear that this is relevant to me.
Federal courts have the power to grant remedial relief where they have jurisdiction -- it's not clear that this is relevant to me.
U.S. v. Standard Oil
United States v. Standard Oil Co., 332 U.S. 302 (1947)
In re: Erie: "Its object and effect were thus to bring federal judicial power under subjection to state authority in matters essentially of local interest and state control." 301
The key is that the federal judicial power is subject to internal limits, subject to the requirement that the federal government (as a whole) be respectful of state authority.
Citing references
Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. Rev. 811 (1991)
In re: Erie: "Its object and effect were thus to bring federal judicial power under subjection to state authority in matters essentially of local interest and state control." 301
The key is that the federal judicial power is subject to internal limits, subject to the requirement that the federal government (as a whole) be respectful of state authority.
Citing references
Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. Rev. 811 (1991)
Healy v. Ratta
Healy v. Ratta, 292 U.S. 264 (1934)
The actual issue in the case isn't so relevant, but here's some language: "The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution." 270
Does this mean that Congress can act outside of its Article I limits in granting power to the Courts? That seems to be the understanding, that state sovereignty as far as judicial matters is only limited by Article III.
On the other hand, that gets us back to reading Article I into Article III -- the court can't hear anything (under federal question) that Congress doesn't pass, so isn't that equivalent to saying that the court can't hear anything Congress can't pass, or is there a distinction between "doesn't" and "can't"?
References
Kline v. Burke Construction Co., 260 U.S. 226 (????)
The actual issue in the case isn't so relevant, but here's some language: "The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution." 270
Does this mean that Congress can act outside of its Article I limits in granting power to the Courts? That seems to be the understanding, that state sovereignty as far as judicial matters is only limited by Article III.
On the other hand, that gets us back to reading Article I into Article III -- the court can't hear anything (under federal question) that Congress doesn't pass, so isn't that equivalent to saying that the court can't hear anything Congress can't pass, or is there a distinction between "doesn't" and "can't"?
References
Kline v. Burke Construction Co., 260 U.S. 226 (????)
Mansfield v. Swan
Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379 (1883)
Because the lower court didn't have jurisdiction, the judgment must be reversed. It isn't clear why this case is noteworthy, because it seems like it should follow directly on Capron v. Van Noorden.
"[T]he judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted." 384
The judgment must be reversed, "else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy." 385
References
Capron v. Van Noorden, 2 Cranch 126 (1804)
Because the lower court didn't have jurisdiction, the judgment must be reversed. It isn't clear why this case is noteworthy, because it seems like it should follow directly on Capron v. Van Noorden.
"[T]he judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted." 384
The judgment must be reversed, "else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy." 385
References
Capron v. Van Noorden, 2 Cranch 126 (1804)
Swift v. Tyson
Swift v. Tyson, 41 U.S. 1 (1842)
The phrase "laws of the several states" refers only to statutes, not to unwritten judge-made (i.e. common) law.
The phrase "laws of the several states" refers only to statutes, not to unwritten judge-made (i.e. common) law.
Thursday, January 31, 2008
The Emergence of Jurisdictional Resequencing in the Federal Courts
Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 Cornell L. Rev. 1 (2001)
Read about half, but stopped once he got really into the arguments about resequencing -- I wanted to see what he had to say on judicial power, federal power, etc., but what's there isn't all that interesting / useful.
Note 4 talks about how the Court has expanded federal judicial power in certain ways, which is important to keep in mind. Cited for this are Dickerson and City of Boerne.
A quote from Ruhrgas points out (to me, not by Idleman) a potential Hohfeldian error by the Court: "Personal jurisdiction, too, is an essential element of the jurisdiction of a district court." But is "jurisdiction" being used in different ways here? What does jurisdiction actually mean? The Court doesn't seem to examine this question, simply skating over it.
Idleman points out potential federalism concerns of resequencing, which leads me to wonder about the lawmaking power implications: jurisdiction to determine jurisdiction means that lawmaking in the realm of "what is our jurisdiction" is legitimate; but a court that resequences makes law in the field of personal jurisdiction, and that action may not be legitimate.
At 28, Idleman points out that the constitutional avoidance rule itself has constitutional dimensions. But doesn't that mean that applying the constitutional avoidance rule is breaking the constitutional avoidance rule? Isn't the court then silently preferring one aspect of the constitution over another? (This is a side point, not necessarily relevant to the present, art1art3, inquiry.)
Idleman describes, at 33, SMJ "as an internal limitation on the existence of federal judicial power and thus the sovereignty of the federal government." The second part, re: sovereignty, is what interests me. SMJ is intimately related to the limited power of the federal government, so it would make sense to apply general, overall federal limits to SMJ as well as Congressional "jurisdiction".
At 35: "And from this architectural perspective, it is clear not only that structural features -- such as the principles of internally limited federal power, the separation of powers, and federalism -- are at the core of American constitutionalism ... ." I object to separating "internally limited federal power" from "separation of powers" and "federalism". What internal limits on federal power are there that aren't more specifically classifiable as being part of vertical or horizontal separation of powers? Perhaps there might be internal limits vis a vis individuals as well, so we can extend our categories to three: vertical, horizontal, and personal separation of powers. But either way, it seems silly to put "internal limits" on the same level of categorization as "federalism".
At 36: personal jurisdiction "does not concern sovereignty". Either Idleman has a completely different conception of sovereignty than I do (not out of the question, since I don't see a definition anywhere) or this is completely mistaken. A piece of personal jurisdiction is that this court represents the wrong sovereign. You can't sue me in Minnesota because Minnesota's sovereignty does not extend so far as to regulate my affairs. (I'm simplifying intentionally.) You can sue me in New York because New York is the sovereign that I have most immediately acknowledged as governing me (which acknowledgment comes about through living here). Thus it appears that sovereignty is every bit as relevant to PJ as it is to SMJ.
References
Dickerson v. United States, 530 U.S. 428 (2000) -- expansion of judicial power
City of Boerne v. Flores, 521 U.S. 507 (1997) -- expansion of judicial power
Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
Thomas E. Baker, A Catalogue of Judicial Federalism in the United States, 46 S.C. L. Rev. 835 (1995)
Thomas E. Baker, A View to the Future of Judicial Federalism: "Neither Out Far nor In Deep", 45 Case W. Res. L. Rev. 705 (1995)
Leroy v. Great Western United Corp., 443 U.S. 173 (1979) -- importance of SMJ
Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379 (1884) -- importance of SMJ
The Federalist No. 51 (James Madison) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)
Marci A. Hamilton, City of Boerne v. Flores: A Landmark for Structural Analysis, 39 Wm. & Mary L. Rev. 699 (1998) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)
Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary (1994)
Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805 (1995)
Healy v. Ratta, 292 U.S. 263 (1934) -- 10th and 11th Amendment federalism limits on judicial power
Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 Me. L. Rev. 41 (1988)
Musson Theatrical v. Fed. Express, 89 F.3d 1244 (6th Cir. 1996) -- federal judicial lawmaking as potentially violative of federalism and separation of powers
Citing references
Stephen I. Vladeck, The Increasingly "Unflagging Obligation": Federal Jurisdiction After Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553 (2007)
Read about half, but stopped once he got really into the arguments about resequencing -- I wanted to see what he had to say on judicial power, federal power, etc., but what's there isn't all that interesting / useful.
Note 4 talks about how the Court has expanded federal judicial power in certain ways, which is important to keep in mind. Cited for this are Dickerson and City of Boerne.
A quote from Ruhrgas points out (to me, not by Idleman) a potential Hohfeldian error by the Court: "Personal jurisdiction, too, is an essential element of the jurisdiction of a district court." But is "jurisdiction" being used in different ways here? What does jurisdiction actually mean? The Court doesn't seem to examine this question, simply skating over it.
Idleman points out potential federalism concerns of resequencing, which leads me to wonder about the lawmaking power implications: jurisdiction to determine jurisdiction means that lawmaking in the realm of "what is our jurisdiction" is legitimate; but a court that resequences makes law in the field of personal jurisdiction, and that action may not be legitimate.
At 28, Idleman points out that the constitutional avoidance rule itself has constitutional dimensions. But doesn't that mean that applying the constitutional avoidance rule is breaking the constitutional avoidance rule? Isn't the court then silently preferring one aspect of the constitution over another? (This is a side point, not necessarily relevant to the present, art1art3, inquiry.)
Idleman describes, at 33, SMJ "as an internal limitation on the existence of federal judicial power and thus the sovereignty of the federal government." The second part, re: sovereignty, is what interests me. SMJ is intimately related to the limited power of the federal government, so it would make sense to apply general, overall federal limits to SMJ as well as Congressional "jurisdiction".
At 35: "And from this architectural perspective, it is clear not only that structural features -- such as the principles of internally limited federal power, the separation of powers, and federalism -- are at the core of American constitutionalism ... ." I object to separating "internally limited federal power" from "separation of powers" and "federalism". What internal limits on federal power are there that aren't more specifically classifiable as being part of vertical or horizontal separation of powers? Perhaps there might be internal limits vis a vis individuals as well, so we can extend our categories to three: vertical, horizontal, and personal separation of powers. But either way, it seems silly to put "internal limits" on the same level of categorization as "federalism".
At 36: personal jurisdiction "does not concern sovereignty". Either Idleman has a completely different conception of sovereignty than I do (not out of the question, since I don't see a definition anywhere) or this is completely mistaken. A piece of personal jurisdiction is that this court represents the wrong sovereign. You can't sue me in Minnesota because Minnesota's sovereignty does not extend so far as to regulate my affairs. (I'm simplifying intentionally.) You can sue me in New York because New York is the sovereign that I have most immediately acknowledged as governing me (which acknowledgment comes about through living here). Thus it appears that sovereignty is every bit as relevant to PJ as it is to SMJ.
References
Dickerson v. United States, 530 U.S. 428 (2000) -- expansion of judicial power
City of Boerne v. Flores, 521 U.S. 507 (1997) -- expansion of judicial power
Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
Thomas E. Baker, A Catalogue of Judicial Federalism in the United States, 46 S.C. L. Rev. 835 (1995)
Thomas E. Baker, A View to the Future of Judicial Federalism: "Neither Out Far nor In Deep", 45 Case W. Res. L. Rev. 705 (1995)
Leroy v. Great Western United Corp., 443 U.S. 173 (1979) -- importance of SMJ
Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379 (1884) -- importance of SMJ
The Federalist No. 51 (James Madison) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)
Marci A. Hamilton, City of Boerne v. Flores: A Landmark for Structural Analysis, 39 Wm. & Mary L. Rev. 699 (1998) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)
Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary (1994)
Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805 (1995)
Healy v. Ratta, 292 U.S. 263 (1934) -- 10th and 11th Amendment federalism limits on judicial power
Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 Me. L. Rev. 41 (1988)
Musson Theatrical v. Fed. Express, 89 F.3d 1244 (6th Cir. 1996) -- federal judicial lawmaking as potentially violative of federalism and separation of powers
Citing references
Stephen I. Vladeck, The Increasingly "Unflagging Obligation": Federal Jurisdiction After Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553 (2007)
In Praise of Erie -- And of the New Federal Common Law
Henry J. Friendly, In Praise of Erie -- And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)
Pretty much what the title sounds like. Not directly useful, but some passages are interesting, for the usual reason, that they indicate some understanding of federalism limits on federal court power ("power" construed broadly, not necessarily meaning "jurisdiction").
On 395: "Yet it would be even more unreasonable to suppose that the federal courts have a law-making power which the federal legislature does not."
Also on 395: "It is true enough that a state court can make law without any specific authorization in a constitution or statute. But that is not a valid basis for reasoning in the case of a government whose legislature has only such powers as are specifically granted. The spectacle of federal judges being able to make law without possibility of Congressional correction would not be a happy one."
References
Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) -- read this for links between jurisdiction and lawmaking power and judicial power and federal power generally.
Borak v. J.I. Case Co.. The case at the circuit court level was 317 F.2d 838.
Pretty much what the title sounds like. Not directly useful, but some passages are interesting, for the usual reason, that they indicate some understanding of federalism limits on federal court power ("power" construed broadly, not necessarily meaning "jurisdiction").
On 395: "Yet it would be even more unreasonable to suppose that the federal courts have a law-making power which the federal legislature does not."
Also on 395: "It is true enough that a state court can make law without any specific authorization in a constitution or statute. But that is not a valid basis for reasoning in the case of a government whose legislature has only such powers as are specifically granted. The spectacle of federal judges being able to make law without possibility of Congressional correction would not be a happy one."
References
Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) -- read this for links between jurisdiction and lawmaking power and judicial power and federal power generally.
Borak v. J.I. Case Co.. The case at the circuit court level was 317 F.2d 838.
Tuesday, January 22, 2008
Judicial Opinions as Binding Law and as Explanations for Judgments
Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993)
Didn't read past the introduction.
Didn't read past the introduction.
Courts or Tribunals? Federal Courts and the Common Law
Peter L. Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala. L. Rev. 891 (2002)
The middle section, on Swift and Erie, are most interesting to me.
At 908: "Whether federal courts are permitted to be lawmakers might seem to have been settled, as Justice Jackson argued, by the Constitution's creation of a judiciary in the familiar English mold and reference in constitutional text to such common law concepts as the sanctity of contracts." Cites D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942) (Jackson concurring).
At 909: "[O]ne might suppose that the constitutional description of judicial power ... imagined that the federal courts ... would be courts in the ordinary understanding -- that is, common law courts or equity courts ... ."
At 911, describing a potential argument the lawyers in Swift could have made: "[C]ommon law judgments properly articulated by the Supreme Court independent of state common law -- that is, within the reach of the federal lawmaking authority -- would be among the "Laws ... made, under the Authority of the United States." (Quoting the Supremacy Clause, I think.)
At 913, a quote from Purcell (see below) to the effect that certain Supreme Court Justices, while voting to limit Congressional power within the text of the Constitution, also sought to extend the judicial power beyond Article I limits. Erie, then, should be understood to repudiate this understanding, i.e. to stand for the idea that the federal courts are limited in the same way that Congress is.
References
United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)
Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (2000)
The middle section, on Swift and Erie, are most interesting to me.
At 908: "Whether federal courts are permitted to be lawmakers might seem to have been settled, as Justice Jackson argued, by the Constitution's creation of a judiciary in the familiar English mold and reference in constitutional text to such common law concepts as the sanctity of contracts." Cites D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942) (Jackson concurring).
At 909: "[O]ne might suppose that the constitutional description of judicial power ... imagined that the federal courts ... would be courts in the ordinary understanding -- that is, common law courts or equity courts ... ."
At 911, describing a potential argument the lawyers in Swift could have made: "[C]ommon law judgments properly articulated by the Supreme Court independent of state common law -- that is, within the reach of the federal lawmaking authority -- would be among the "Laws ... made, under the Authority of the United States." (Quoting the Supremacy Clause, I think.)
At 913, a quote from Purcell (see below) to the effect that certain Supreme Court Justices, while voting to limit Congressional power within the text of the Constitution, also sought to extend the judicial power beyond Article I limits. Erie, then, should be understood to repudiate this understanding, i.e. to stand for the idea that the federal courts are limited in the same way that Congress is.
References
United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)
Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (2000)
The Common Law and Statutes
Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225 (1999)
The main point relevant to me is the idea that courts make law when they're interpreting statutes insofar as the interpretations have precedential force. Much ink has been spilled over whether interpretation is lawmaking (e.g. Kelsen's application as (lower) norm creation), but it seems rather uncontroversial to say that courts make law when they interpret statutes and expect other courts to follow those interpretations.
Note how this argument relates to the argument that judicial lawmaking is ok so long as it's tied to an existing federal statute, made by Larry Kramer in The Lawmaking Power of the Federal Courts. Interpretation is by its nature lawmaking tied to a statute, and thus would, under the moderate lawmaking power view of Kramer, be entirely legitimate.
The main point relevant to me is the idea that courts make law when they're interpreting statutes insofar as the interpretations have precedential force. Much ink has been spilled over whether interpretation is lawmaking (e.g. Kelsen's application as (lower) norm creation), but it seems rather uncontroversial to say that courts make law when they interpret statutes and expect other courts to follow those interpretations.
Note how this argument relates to the argument that judicial lawmaking is ok so long as it's tied to an existing federal statute, made by Larry Kramer in The Lawmaking Power of the Federal Courts. Interpretation is by its nature lawmaking tied to a statute, and thus would, under the moderate lawmaking power view of Kramer, be entirely legitimate.
Monday, January 21, 2008
United States v. Trans-Missouri Freight Association
United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897), excerpted in Trade Regulation text, at 51. On 53:
"We are asked to regard the title of this act as indicative of its purpose to include only those contracts which were unlawful at common law, but which require the sanction of a Federal statute in order to be dealt with in a Federal court."
The Court (Justice Peckham) rejects this argument, but not on any kind of structural argument, but rather on a statutory interpretation principle. Regardless, though, even 40 years before Erie, it appears that it was not unheard of to argue that a federal court couldn't just go around making law outside the realm of federal statutes. Why this argument would have been viable isn't clear to me -- didn't federal courts make law outside of federal statutes all the time? Isn't that exactly what Erie put a stop to?
"We are asked to regard the title of this act as indicative of its purpose to include only those contracts which were unlawful at common law, but which require the sanction of a Federal statute in order to be dealt with in a Federal court."
The Court (Justice Peckham) rejects this argument, but not on any kind of structural argument, but rather on a statutory interpretation principle. Regardless, though, even 40 years before Erie, it appears that it was not unheard of to argue that a federal court couldn't just go around making law outside the realm of federal statutes. Why this argument would have been viable isn't clear to me -- didn't federal courts make law outside of federal statutes all the time? Isn't that exactly what Erie put a stop to?
Thursday, January 17, 2008
The Lawmaking Power of the Federal Courts
Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)
Kramer argues that federal court lawmaking power is a useful thing, and thus that it should be permitted to the extent that it can be grounded in some statute already passed by Congress.
How is this any different from reality? As long as we understand interpretation of statutes as lawmaking, courts already make law grounded in statutes. It isn't clear what conception of common law Kramer has in mind to allow the courts to make.
Furthermore, is this even a limit that needs to be created? Doesn't limited federal jurisdiction mean that courts have common law power limited to federal statutes? That is, federal courts can already only hear cases based on established federal causes of action, which must be statutory (or Constitutional). So how can a court even have the opportunity to violate this limit?
Kramer notes that one value of separation of powers is that by establishing clear lines of authority, the branches won't waste time and resources "bickering about who is authorized to do what." (266) This seems rather Amero-centric, in that it takes the current system and can imagine no other. A competition-oriented system, on the other hand, doesn't seem unfeasible -- the lines would be drawn dynamically, based on which branches showed the ability to exercise the power best, via maximal efficiency, fairness, etc. Furthermore, American government includes plenty of overlap where "bickering" takes place, e.g. antitrust enforcement, where the FTC and the DOJ overlap quite a bit.
Kramer claims that judicial lawmaking is unavoidable because legislatures cannot anticipate every future use of a statute, i.e. interpretation is lawmaking. But isn't this only true where precedential value is given to prior interpretations? In a pure code system, where judges are tasked with reading the statute de novo for every case, isn't interpretation not actually lawmaking in quite the same sense? That is, the judge certainly makes a law in the sense of a lower-order norm, a concrete norm, but they make no higher, more general norms that later courts will follow, i.e. they make no law that is analogous to the law as it exists in the Code.
"As part of the federal government, any limits on federal power presumably bind the federal courts." (274)
Based on this view of common lawmaking power only upon federal statutes, how do we evaluate Arbaugh? Doesn't saying that the courts do have jurisdiction over cases not regulated by Congress give permission for the courts to make law in an area in which Congress has not "take[n] the first step"? (288) Congress has decided not to regulate small employers, has not taken the first step. The court decides to step in after all. Thus perhaps the federal courts' lawmaking power is broader than Kramer's conception.
References
Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761 (1989)
Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 883 (1986)
Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805 (1989)
Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (1991)
Citing references
George Rutherglen, Reconstructing Erie: A Comment On The Perils of Legal Positivism, 10 Const. Comment 285 (1993)
Lenaerts, Koen; Gutman, Kathleen, Federal Common Law in the European Union: A Comparative Perspective from the United States, 54 Am. J. Comp. L. 1 (2006)
Idleman, Scott C., The Emergence of Jurisdictional Resequencing in the Federal Courts 87 Cornell L. Rev. 1 (2001)
Kramer argues that federal court lawmaking power is a useful thing, and thus that it should be permitted to the extent that it can be grounded in some statute already passed by Congress.
How is this any different from reality? As long as we understand interpretation of statutes as lawmaking, courts already make law grounded in statutes. It isn't clear what conception of common law Kramer has in mind to allow the courts to make.
Furthermore, is this even a limit that needs to be created? Doesn't limited federal jurisdiction mean that courts have common law power limited to federal statutes? That is, federal courts can already only hear cases based on established federal causes of action, which must be statutory (or Constitutional). So how can a court even have the opportunity to violate this limit?
Kramer notes that one value of separation of powers is that by establishing clear lines of authority, the branches won't waste time and resources "bickering about who is authorized to do what." (266) This seems rather Amero-centric, in that it takes the current system and can imagine no other. A competition-oriented system, on the other hand, doesn't seem unfeasible -- the lines would be drawn dynamically, based on which branches showed the ability to exercise the power best, via maximal efficiency, fairness, etc. Furthermore, American government includes plenty of overlap where "bickering" takes place, e.g. antitrust enforcement, where the FTC and the DOJ overlap quite a bit.
Kramer claims that judicial lawmaking is unavoidable because legislatures cannot anticipate every future use of a statute, i.e. interpretation is lawmaking. But isn't this only true where precedential value is given to prior interpretations? In a pure code system, where judges are tasked with reading the statute de novo for every case, isn't interpretation not actually lawmaking in quite the same sense? That is, the judge certainly makes a law in the sense of a lower-order norm, a concrete norm, but they make no higher, more general norms that later courts will follow, i.e. they make no law that is analogous to the law as it exists in the Code.
"As part of the federal government, any limits on federal power presumably bind the federal courts." (274)
Based on this view of common lawmaking power only upon federal statutes, how do we evaluate Arbaugh? Doesn't saying that the courts do have jurisdiction over cases not regulated by Congress give permission for the courts to make law in an area in which Congress has not "take[n] the first step"? (288) Congress has decided not to regulate small employers, has not taken the first step. The court decides to step in after all. Thus perhaps the federal courts' lawmaking power is broader than Kramer's conception.
References
Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761 (1989)
Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 883 (1986)
Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805 (1989)
Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (1991)
Citing references
George Rutherglen, Reconstructing Erie: A Comment On The Perils of Legal Positivism, 10 Const. Comment 285 (1993)
Lenaerts, Koen; Gutman, Kathleen, Federal Common Law in the European Union: A Comparative Perspective from the United States, 54 Am. J. Comp. L. 1 (2006)
Idleman, Scott C., The Emergence of Jurisdictional Resequencing in the Federal Courts 87 Cornell L. Rev. 1 (2001)
Thursday, January 10, 2008
The Law-Making Power of the Federal Courts: Constitutional Preemption
Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Colum. L. Rev. 1024 (1967)
Thesis is around the idea that there is exclusive federal power (and thus federal court power to make law) in certain areas, per the Constitution, some recognized, some unrecognized. Hill seems to believe, though, what I also think: the judicial and legislative powers are coextensive.
1024: "Because the federal government, its judicial branch included, is one of limited powers, the ultimate sources of federal law are usually thought of as reposing not in the pronouncements of the courts but in the constitutional and statutory texts that define the reach of federal governance."
1032: "The only general reference to maritime questions in the Constitution is the provision in article III, section 2, extending the federal judicial power to 'all Cases of admiralty and maritime jurisdiction.' On the basis of this provision, the Supreme Court has concluded that the founders intended that a uniform maritime law should prevail in the federal and state courts alike. It is now well settled that, in the absence of a treaty or federal statute, federal judge-made law furnishes the rule of decision in maritime matters, although state law plays a subsidiary role, as will be seen"
This quote cites: Southern Pac. Co. v. Jensen, 244 U.S. 205, 214-15 (1917); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-11 (1953); Gilmore & Black, The Law of Admiralty, 40-46, 374-86 (1957).
So the court has basically said that Article III power was also Article I power? That is, that maritime legislation need not be passed pursuant to express Article I provisions? But: can't maritime law be passed under the commerce clause? Interstate water and international waters are certainly regulable channels of commerce. But what about intrastate waters? Does the admiralty law apply to purely intrastate lakes? (Gilmore and Black cover this question early on in the treatise. Return to it for the answer.)
1070: "Constitutional interpretation aside, it is generally fair to presume that there is a lack of federal judicial power in a particular area unless federal political competence within it is coextensive; and this is of course not a matter of mere coexistence but of power to supersede judge-made law."
If Congress can't reach it, neither can the courts, in other words. Note, though, that there's no citation for this proposition. Hill states it to reassure the reader that his thesis does not entail for the federal courts the power to do things that Congress cannot then reverse. (Which is precisely my thesis.)
References
Friendly, In Praise of Erie -- and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)
Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448 (1957) (esp. Frankfurter's dissent) (see also notes from Federal Courts)
United States v. Standard Oil Co. of California, 332 U.S. 301 (1947)
Citing references
Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)
William H. Theis, United States Admiralty Law as an Enclave of Federal Common Law, 23 Tul. Mar. L.J. 73 (1998)
Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001)
Thesis is around the idea that there is exclusive federal power (and thus federal court power to make law) in certain areas, per the Constitution, some recognized, some unrecognized. Hill seems to believe, though, what I also think: the judicial and legislative powers are coextensive.
1024: "Because the federal government, its judicial branch included, is one of limited powers, the ultimate sources of federal law are usually thought of as reposing not in the pronouncements of the courts but in the constitutional and statutory texts that define the reach of federal governance."
1032: "The only general reference to maritime questions in the Constitution is the provision in article III, section 2, extending the federal judicial power to 'all Cases of admiralty and maritime jurisdiction.' On the basis of this provision, the Supreme Court has concluded that the founders intended that a uniform maritime law should prevail in the federal and state courts alike. It is now well settled that, in the absence of a treaty or federal statute, federal judge-made law furnishes the rule of decision in maritime matters, although state law plays a subsidiary role, as will be seen"
This quote cites: Southern Pac. Co. v. Jensen, 244 U.S. 205, 214-15 (1917); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-11 (1953); Gilmore & Black, The Law of Admiralty, 40-46, 374-86 (1957).
So the court has basically said that Article III power was also Article I power? That is, that maritime legislation need not be passed pursuant to express Article I provisions? But: can't maritime law be passed under the commerce clause? Interstate water and international waters are certainly regulable channels of commerce. But what about intrastate waters? Does the admiralty law apply to purely intrastate lakes? (Gilmore and Black cover this question early on in the treatise. Return to it for the answer.)
1070: "Constitutional interpretation aside, it is generally fair to presume that there is a lack of federal judicial power in a particular area unless federal political competence within it is coextensive; and this is of course not a matter of mere coexistence but of power to supersede judge-made law."
If Congress can't reach it, neither can the courts, in other words. Note, though, that there's no citation for this proposition. Hill states it to reassure the reader that his thesis does not entail for the federal courts the power to do things that Congress cannot then reverse. (Which is precisely my thesis.)
References
Friendly, In Praise of Erie -- and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)
Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448 (1957) (esp. Frankfurter's dissent) (see also notes from Federal Courts)
United States v. Standard Oil Co. of California, 332 U.S. 301 (1947)
Citing references
Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)
William H. Theis, United States Admiralty Law as an Enclave of Federal Common Law, 23 Tul. Mar. L.J. 73 (1998)
Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001)
Statutory Interpretation
Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863 (1930)
Realist deconstruction of statutory interpretation. Nothing very surprising, or that wasn't already covered in Elements, but perhaps it was cutting edge in 1930?
References: None
Citing references:
Henry J. Friendly, In Praise of Erie -- and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)
Realist deconstruction of statutory interpretation. Nothing very surprising, or that wasn't already covered in Elements, but perhaps it was cutting edge in 1930?
References: None
Citing references:
Henry J. Friendly, In Praise of Erie -- and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)
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