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)
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