Busting the Hart & Wechsler paradigm.

• Author: Wells, Michael L.
• Position: Henry Hart and Herbert Wechsler, authors of 1953 casebook 'The Federal Courts and the Federal System'

Federal Courts law was once a vibrant area of scholarship and an essential course for intellectually ambitious students. Now its prestige has diminished so much that scholars debate its future in a recent issue of the Vanderbilt Law Review, where even one of its champions calls it (albeit in the subjunctive mood) a scholarly backwater."(1) What, if anything, went wrong, and what should Federal Courts scholars do about it? In his contribution to the Vanderbilt symposium, Richard Fallon defends the reigning model of Federal Courts law, an approach to jurisdictional issues that dates from the publication in 1953 of Henry Hart and Herbert Wechsler's casebook, The Federal Courts and the Federal System.(2) In Fallon's view, nothing went wrong, and in any event there is not much we can do about it. In brief, Fallon argues that with a few adjustments, Federal Courts scholars should continue to work within the model set out by Hart & Wechsler forty years ago, a model that rests upon "the principles and policies underlying federalism and the separation of powers,"(3) and such process values as "reasoned elaboration of principles and policies that are ultimately traceable to more democratically legitimate decisionmakers"(4) and the obligation that judges "be principled in their reasoning."(5) He suggests that although the rise of interdisciplinary studies has overshadowed the process-based methodology that characterizes most Federal Courts teaching and scholarship, the traditional approach to Federal Courts still has much to offer. In any event, Fallon suggests, there is no good alternative available for the study of the allocation issues that make up the Federal Courts field.(6)

In this article I argue that the "Hart & Wechsler paradigm" (as Fallon calls their model)(7) no longer serves us well either as an account of what the Supreme Court does in Federal Courts cases or as a guide to what the Court ought to do. In its place, I propose a new, more fruitful model for analyzing the normative issues that arise in Federal Courts cases. I call it the "pragmatic paradigm," because its central feature is the pragmatist precept that no value should be taken as foundational, be it process, federalism, or separation of powers. Rather, the force of any of these values in a given case depends on the arguments that can be mustered in their support, and those arguments will vary in strength depending on context.

1. THE HART & WECHSLER PARADIGM

   Hart & Wechsler's casebook contains no explicit model of Federal Courts Law. Even so, Fallon is right to discern a paradigm in the materials, in contemporaneous writings by the book's authors, and in the scholarly tradition they spawned. Fallon notes that "the central, organizing question of Federal Courts doctrine involves allocations of authority: Who ought to have authority to give conclusive determinations of which kinds of questions?"(8) The insight linking allocation issues is that "authority to decide must at least sometimes include authority to decide wrongly ... Once [this] point is recognized, it becomes evident that constitutional federalism and the separation of powers can be illuminated by painstaking attention to the question of where ultimate responsibility for certain kinds of questions, including the power to make uncorrectable mistakes, should lie."(9)

   In addressing allocation issues, Hart & Wechsler employed six methodological assumptions. These include:

   (1) The principle of institutional settlement," which holds "that decisions which are the duly arrived at result of duly established procedures for making decisions of this kind ought to be accepted as binding on the whole society unless and until they are duly changed."(10)

   (2) The anti-positivist principle," that allocation decisions must be understood "as a rich, fluid, and evolving set of norms for effective governance and dispute resolution, not as a positivist system of fixed and determinate rules."(11)

   (3) The principle of structural interpretation," which provides that "[i]n disputes about the proper allocation of decision-making authority, the principles and policies underlying federalism and the separation of powers deserve special weight."(12)

   (4) The principle of the rule of law," which implies that "the courts have irreducible functions" and "requires the availability of judicial remedies sufficient to vindicate fundamental legal principles."(13)

   (5) "The principle of reasoned elaboration," that judicial creativity is constrained by "the reasoned elaboration of principles and policies that are ultimately traceable to more democratically legitimate decisionmakers."(14)

   (6) The neutrality principle," which forbids courts to "mak[e] law or policy out of whole cloth, [or] ... to impose substantive judicial judgments on disputes not capable of resolution through the application of neutral principles to sharply defined sets of facts."(15)

   I include among the scholars who generally subscribe to this model--the "Legal Process" model--not only Henry Hart, Herbert Wechsler, and Richard Fallon, but also other leading figures in Federal Courts scholarship over the past forty years, among them Akhil Amar, Paul Bator, George Brown, Erwin Chemerinsky, Daniel Meltzer, Henry Monaghan, Paul Mishkin, Gene Nichol, Martin Redish, David Shapiro, and Larry Yackle, as well as a host of younger scholars, such as Ann Althouse and Barry Friedman, who follow their lead. These Legal Process scholars do not always march in lockstep. For example, the "anti-positivist principle" counts for more with some than others.(16) They also differ, sometimes sharply, on their views of what the law is and should be.(17) All the same, these scholars share enough in common to justify placing them all under Fallon's Legal Process umbrella.

2. PROCESS VALUES IN FEDERAL COURTS LAW

   Four premises of the Hart & Wechsler paradigm, the "anti-positivist principle," the "principle of the rule of law," the "principle of reasoned elaboration," and the "neutrality principle," reflect the emphasis Legal Process scholars place upon identifying the distinctive features of judicial decision making.(18) Elaborating on Fallon's sketch, they formulate the constraints under which judges operate in a variety of ways--sometimes as a duty to treat like cases alike,(19) to make a coherent body of law that achieves integrity,"(20) to decide cases according to principle,(21) or to avoid checkerboard solutions" that make arbitrary distinctions between cases that are similar in relevant respects.(22) Again, Legal Process scholars who advance arguments of this sort hardly concur on all particulars. For my purposes, though, their areas of agreement are far more important than their disagreements. I shall treat them as a group, generally using the term "coherence" to represent their uniting features.

   I base my claim that federal courts law is largely incoherent on the proliferation of diametrically opposed principles in jurisdictional doctrine. Some of these conflicts relate to separation of powers issues, and in particular to the role of the federal courts in our tripartite system of government. In broad terms, the issues here concern whether and when the federal courts should defer to the other branches. Other contradictory premises bear on the relationship between the federal courts and the state courts. Are the state courts the principal judicial bodies in our system, reflecting the Madisonian compromise of Article III, or are dominant judicial roles to be assigned to the federal courts? On both separation of powers and federalism issues, the Supreme Court's pattern of decisions reffects considerable incoherence.

   1. SEPARATION OF POWERS

      The issue here is the role of the federal courts in the tripartite scheme of American government. Is it better to think of federal courts as ordinary judicial tribunals whose task is to resolve traditional disputes, differing from state courts only in that Congress may limit their jurisdiction? Or is the federal judiciary more appropriately considered an institution that defines and elaborates the meaning of constitutional and other public values, serving as a bulwark against overreaching by the legislative and executive branches?(23) The Supreme Court has never settled on either of these alternatives or even on some synthesis of them. Instead, it has shifted back and forth between the poles, producing incoherent bodies of doctrine on a diverse range of issues. In the law of standing, for example, some decisions begin from the premise that the federal courts are traditional for a for dispute resolution,(24) while other cases view the judiciary as the organ of government charged with the defense and explication of constitutional values, and are little troubled by the niceties of common law litigation.(25) Causation, redressability, third party standing and mootness decisions reflect similar tensions.(26)

      Other separation of powers doctrines are equally incoherent. The Court has never squarely addressed the scope of Congressional power to restrict federal jurisdiction.(27) The Court's opinions devoted to the ... validity of legislative and administrative tribunals [which lack Article III independence] are as troubled, arcane, confused and confusing as could be imagined."(28) Its decisions on the appropriate scope of the federal common law of remedies began with Bivens v. SLX Unknown Named Federal Agents,(29) which takes a liberal view of judicial power and seems to rest on the premise that the federal judiciary serves as a bulwark against overreaching by the other branches.(30) More recently, in a line of cases that culminated with Schweiker v. Chilicky,(31) the Court denies a damages action, even where other available remedies are not adequate to vindicate the asserted constitutional rights. The unstated premise of the holding in Chilicky is that the federal courts have no special role in defending constitutional rights against the other...