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)

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.

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.

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 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.

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?

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)

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)

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)