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.
Showing posts with label arbaugh. Show all posts
Showing posts with label arbaugh. Show all posts
Tuesday, March 11, 2008
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)
Monday, April 23, 2007
Federalism and the Double Standard of Judicial Review
Lynn A. Baker (Texas) & Ernest A. Young (Texas), Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001)
Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.
Interesting references
Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)
Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)
John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)
Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.
Interesting references
Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)
Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)
John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)
Inside the Federalism Cases: Concern About the Federal Courts
Ann Althouse (Wisconsin), Inside the Federalism Cases: Concern About the Federal Courts, 574 Annals Am. Acad. Pol. & Soc. Sci. 132 (2001)
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr. (LSU), Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545 (2005)
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Should Liberals Fear Federalism?
Lynn A. Baker (Texas), Should Liberals Fear Federalism?, 70 U. Cin. L. Rev. 433 (2002)
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Saturday, April 14, 2007
Clear Statement Rules
William N. Eskridge, Jr. (Yale) & Philip P. Frickey (Boalt), Quasi-Constitutional Law: Clear Statement Rules As Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992). (excerpts from 621-22 & 638-40 on pgs 615-16 of Federal Courts casebook)
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
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