In a recent article, Professor Michael Wells attacks what I had characterized as "the Hart and Wechsler paradigm" for analysis of Federal Courts issues.(1) To summarize crudely, Wells claims that the Hart & Wechsler paradigm, which we agree reflects the still dominant approach to Federal Courts scholarship, is descriptively impoverished and normatively inadequate, and he offers a "pragmatic" alternative. Wells's article raises important issues for those who teach and write about Federal Courts law. His essay also calls attention to questions about the notion of examining legal issues by reference to a "paradigm" that are equally pertinent to other subject matters. A brief response, addressed to some of these issues, therefore seems warranted.
In an article entitled Reflections on the Hart and Wechsler Paradigm,(2) I maintained that Henry Hart and Herbert Wechsler had established the reigning Federal Courts "paradigm"(3) and attempted to identify its central elements. In the loose sense in which I used the term--reflecting an admittedly vulgar adaptation of Thomas Kuhn's concept of a scientific "paradigm"(4)--a paradigm is a set of assumptions that defines a series of problems worth solving and a framework within which to seek answers.(5) So conceived, the Hart & Wechsler paradigm has two main elements. The first defines the field of study. As framed by Hart Wechsler, Federal Courts issues characteristically involve the appropriate allocation of power to decide legal questions authoritatively.(6) For example, which tribunals should have what authority to decide which questions, and subject to what standard of review?(7)
The second aspect of the Hart & Wechsler paradigm, I argued, consists of a set of largely methodological assumptions-associated generally with the Legal Process school--about how questions such as these should be answered. For present purposes, the most basic of these assumptions is what I termed "the antipositivist principle":(8)
"[W]e should understand the `law' bearing on allocations of
institutional responsibility 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 .... [L]egal
interpretation should be purposive, not rigid or mechanical,
and the variety of sources of law to which a legal interpreter
can appeal includes principles and policies as well as canonical
texts." Given the fluidity implied by the antipositivist principle, judges and lawyers need interpretive guidance. "The principle of structural interpretation" and "the principle of the rule of law" respond to this demand. The principle of structural interpretation 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."(9) The principle of the rule of law implies that "courts have irreducible functions"(10) and "requires the availability of judicial remedies sufficient to vindicate fundamental legal principles."(11) Two further principles, "the principle of reasoned elaboration"(12) and "the neutrality principle,"(13) indicate generally that courts should strive to give reasoned justifications for their decisions.(14) As Wells correctly points out, the conjunction of the latter two principles implies an ideal of legal "coherence" or "integrity."(15) The final methodological assumption of the Hart & Wechsler paradigm, the "principle of institutional settlement," recognizes "the claim to legitimacy of thoughtful, deliberative, unbiased decisions by government officials who are reasonably empowered to make such decisions."
In my earlier article, I attributed these interpretive principles to the first edition of the Hart & Wechsler casebook, read in light of the equally famed Legal Process materials published only a few years later by Henry Hart and Albert Sacks.(16) But I also claimed that the Hart & Wechsler paradigm continues to define the subject matter of Federal Courts as a field of academic inquiry and, more importantly, that its Legal Process methodological assumptions(17) tend to be shared by most contemporary scholars working in the area. Wells accepts the characterization of contemporary Federal Courts teaching and writing as predominantly occurring within the Hart & Wechsler paradigm or imbued with Legal Process assumptions. The principal interest of his article lies in its criticisms of modern scholarship, not in his historical interpretations, and I wish to respond in the same terms.
"JURISDICTIONAL POLICY" AND SUBSTANTIVE REASONING
Wells argues that Hart & Wechsler's Legal Process paradigm fails to provide an accurate or predictively useful account either of Federal Courts doctrine or of judicial decisionmaking.(18) In his view, the law is rife with contradictory principles and irreconcilable decisions. This "incoherence" results, he thinks, because judges frequently decide cases with the aim of promoting substantive goals, such as achieving broader or narrower interpretations or more or less efficacious enforcement of substantive federal rights. On his reading, the reigning approach excludes such "substantive" factors from consideration and assumes that decisionmaking is based exclusively on "jurisdictional policy,"(19) a category in which he puts such values as respect for federalism and the separation of powers, "finality," "uniformity," and "avoidance of unnecessary constitutional decisions."(20)
Although Wells's characterization of the Hart & Wechsler paradigm generally observes the principle of interpretive charity, his distinction between "substantive" and "jurisdictional" policy is crabbed and misleading. No sensible partisan of the Hart Wechsler paradigm thinks that "jurisdictional policy" could be as innocent of substantive concerns as he maintains that the paradigm demands. On the contrary, the richness of the Legal Process approach resides in its sensitivity to the subtle interactions of and overlap between substantive and procedural interests in jurisdictional decisions.(21) Consider some of the most basic Federal Courts issues, as framed by the "canon" that Hart & Wechsler helped to promote.(22) As established by Martin v. Hunter's Lessee,(23) Supreme Court review of state court judgments exists partly to ensure against state court nullification of federal rights. Habeas corpus jurisdiction serves a similar purpose, as does federal "protective jurisdiction"--a concept that Hart & Wechsler helped to launch.(24)
Several of Wells's own examples make the point equally clearly. The question whether there should be "citizen" standing to enforce the Establishment Clause is essentially one about what rights people do or ought to have.(25) It is impossible to decide without reference to substance. No element of the Hart Wechsler paradigm suggests otherwise. Should there be a federal cause of action for damages to redress constitutional violations committed by federal officials? The efficacy of constitutional enforcement is directly at stake; no sensible person would suggest the contrary. Some will view heightened enforcement as more or less important in comparison with other concerns, such as worries about vexatious litigation, the chilling of officials acting in reasonable good faith, and proper deference to Congress's lawmaking prerogatives. But what Wells calls "substance" is clearly a part of the mix.
Similar blends of substance and procedure occur with respect to issues involving federalism. And again, far from obscuring the resulting complexity, the Hart & Wechsler paradigm invites painstaking attention to the layered complexity that marks the intersection of diverse influences. When, if ever, should federal courts enjoin pending state proceedings? If authority exists, it exists under 42 U.S.C. [sections] 1983, because a Reconstruction Congress thought that state courts could not always be trusted to enforce the federal Constitution. Is it wrong for Congress to make a substantive judgment such as this? Clearly not. In the words of Paul Bator, article III contemplates that the scope of federal jurisdiction should reflect political judgments made by Congress from time to time.(26) Can contemporary federal courts implement section 1983 without weighing the extent to which state courts and agencies are likely to provide fair and sympathetic for a for the vindication of federal rights? Although others might disagree, I do not think so. The relevant historical materials are conflicted; policy factors deserve attention.(27) Moreover, within the realm of policy, if a federal court is not likely to construe constitutional rights more broadly or enforce them more efficaciously, there is no good reason to allow a federal injunction. Yet if a federal court is indeed more likely to do so, questions arise not only about the costs of disrupting state proceedings, but about whether broad interpretations of constitutional rights are good or bad, correct or incorrect. Recall the frequency with which federal injunctions thwarted state implementation of regulatory legislation during the Lochner era--a recollection that undoubtedly...