Revising our 'common intellectual heritage': federal and state courts in our federal system.

Author:Resnik, Judith
Position::Abstract through II. National Norms, Political Identity, and Federal Institutions, p. 1831-1866 - Special Issue on the Federal Courts


This Essay pays tribute to Daniel Meltzer's insight that, to the extent "lawyers have a common intellectual heritage, the federal courts are its primary source." I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation.

The heritage that Meltzer celebrated and to which he contributed was the outcome of twentieth-century social movements that focused on the federal courts as hospitable venues, serving as vivid sources of rights and remedies. A competing heritage has since emerged, as the Supreme Court shaped new doctrines constricting judicial powers and rendering courts unavailable and unavailing.

Despite the Court's reluctance to welcome claimants, Congress continues to endow the federal courts with new authority and significant funds. But what the federal government has thus far ignored are the needs of state courts, where 100 million cases are filed annually and states struggle to honor constitutional commitments to open courts and rights to counsel for criminal defendants.

Once state courts come into focus, two other and competing understanding of courts come to the fore. One merits the term "enabling courts," as judges aim to equip litigants with lawyers and resources for conflicts related to families, housing, and health. From "Civil Gideon" movements and self-help forms to drug and reentry courts, new initiatives underscore the goals of using courts to be responsive to social needs. But another vector of court activities falls under the nomenclature of "exploitive courts," using discriminatory fines, fees, and threats of jail for those unable to pay to turn courts into profit centers to augment localities' budgets.

Inequality and racial tensions are the leitmotifs of this decade; it is neither surprising nor inappropriate that these issues are played out in public courts as well as in electoral politics. But these very inequalities counsel the need to develop a new intellectual heritage, premised on the interdependencies of state and federal courts, sharing the common purpose of fulfilling constitutional obligations in this democratic polity to enable access to their public services.

Insofar as modern lawyers have a common intellectual heritage, the federal courts are its primary source.

--Daniel Meltzer, 1989 (1)

TABLE OF CONTENTS I. THE PRIMACY OF THE FEDERAL COURTS II. NATIONAL NORMS, POLITICAL IDENTITY, AND FEDERAL INSTITUTIONS A. Developing National Services from Marine Hospitals and Post Offices to Federal Courts B. Hospitable Courts: Meltzer's Analysis of a Common Heritage of Constitutional Rights and Remedies C. Investing in and Democratizing the Federal Courts III. UNAVAILING COURTS: REVISITING PRESUMPTIONS ABOUT THE FEDERAL JUDICIARY'S REMEDIAL AUTHORITY A. Curbing Rights and Remedies: Constricting Congressional Powers and Immunizing the Government B. Narrowing the Judiciary's Equitable Powers: Grupo Mexicano and Great-West Life & Annuity Company C. Precluding State and Federal Adjudication as Old Statutes Gain New Purposes: From AT&T to DIRECTV D. Statutory Rights and Specified Damages: Spokeo's Injuries it Law, in Fact, and in Cases in the Federal Courts IV. CONGRESSIONAL LOYALTY TO THE FEDERAL COURTS V. ENABLING COURTS: NEW HERITAGES OF GAP-FILLING FOR NEEDY JUSTICE--FEDERAL AND STATE A. The Federal Docket in Decline 1. Flattening and Clumped Filings 2. Poor Litigants B. Vulnerable Heritages: The Post Offices and the Courts C. Comity: Creating a Collective Culture of Court Services I. THE PRIMACY OF THE FEDERAL COURTS

Daniel Meltzer wrote that sentence in 1989, when he reflected on the two hundredth anniversary of the First Judiciary Act. (2) Each year as I teach Federal Courts, I am struck anew by how right he was. The image of and the doctrine produced by the federal courts shapes the imagination and understanding of law students as well as that of the legal academy, lawyers, judges, and the public at large. Honoring Daniel Meltzer by continuing to study the federal courts in his memory, I explore the forces that contributed to the changing contours of, and the gaps in, our "common intellectual heritage."

First, I trace the early years of the federal judiciary that Meltzer esteemed, as it became a vivid form of national authority. Article III is the iconic statement of federal judicial power, but it is Congress that has brought that charter to life by endowing the federal courts with jurisdiction, judgeships, and courthouses and hence propelled the federal courts to the fore. Yet that impact is obscured by the difficulties of tracking the bits and pieces of legislation, riders, and appropriations that cumulatively authorize and fund federal judicial work.

In contrast, case law is readily accessible and offers narratives embedded in individual stories alleging violations of specific legal rules and resulting in reasoned explanations of their applications. Fixing attention on the U.S. Supreme Court has become easy by its production of a predictable and tidy corpus, down to fewer than ninety opinions annually and concluding major pronouncements each year by July 1. (3) Hence, the Court is the lens through which our "common intellectual heritage" has generally been seen.

Second, I provide a brief overview of Meltzer's analyses of the work of the twentieth-century federal judiciary--called upon repeatedly to identify rights and fashion remedies. Again, the iconic moments, such as Brown v. Board of Education, involve constitutional interpretations, yet Congress is the wellspring of judicial action. Between 1974 and 1998, Congress turned to the federal courts hundreds of times (4) and deployed judges to work on an array of topics. Some arenas are well-known and others obscure, as rights to file cases range from legislation on truth-in-lending, (5) fair-credit reporting, (6) and clean air (7) in the 1970s; rail safety, (8) hazardous and solid waste, (9) safe drinking water, (10) wiretaps, (11) video privacy, (12) and equal access to justice (13) in the 1980s; to civil rights, (14) the needs of soldiers and sailors, (15) telephone consumers' protection, (16) and family and medical leave (17) in the 1990s.

Such mandates worked to welcome both public and private litigants, and the federal docket tripled between 1960 and 1990. (18) During much of the second half of the twentieth century, the judiciary enthusiastically responded to calls for help--albeit tempered with managerial efforts focusing on augmenting resources. (19) Meltzer parsed the resulting constitutional and statutory doctrines in search of appropriate balances between the courts and Congress when calibrating remedies for alleged injuries. Meltzer was thus both an heir to, and an expounder of, a common heritage, as he celebrated the remedial contributions of the federal courts while appreciating the limits of what courts could do. Hospitable courts is one way to capture the posture Meltzer commended the federal judiciary to adopt.

Third, I consider the last few decades, during which the Supreme Court led a shift away from the heritage that Meltzer admired. The judiciary's leadership became insistent that federal courts should be asked to do less, rather than more. In place of the presumption of rights to remedies, a new and competing intellectual heritage emerged, bent on constricting the relief that federal judges provide. This approach has some of its seeds in Congress, which in the 1990s enacted a few statutes limiting or "stripping" jurisdiction in cases related to migrants and prisoners, and imposing new conditions in securities cases. (20) Yet Congress continued to dispatch the federal courts by formulating new federal rights that opened the doors for other litigants. Politics continued to produce the idea that giving (or limiting) federal jurisdiction was a "good" to bestow on constituents and on special interest groups. This attitude continued to generate a haphazard and wide array of new rights called "federal."

The greater source of cutbacks came from the judiciary, reading narrowly or overruling what Congress has authorized courts to do. (21) As judicial overrides of new federal statutory rights and judge-made constraints on remedies become more frequent, (22) new generations are being schooled to expect unavailing courts, unwilling to provide claimants with effective opportunities to respond in public venues.

Meltzer modeled the Court-Congress relationship as interdependent, and he repeatedly called for judges to fill gaps in statutes. The Supreme Court's last decades have undercut that cooperative relationship through an odd mix of decisions, sometimes abjuring equitable remedial power absent congressional directions and other times asserting judicial authority to reject congressional authorizations that courts could provide relief. The Court has thus shaped a common heritage largely hostile to rights and often in conflict with or untethered from Congress.

This body of law needs to be read in conjunction with three structural facts reflecting the "machinery of jurisdiction" to which Meltzer repeatedly drew our attention. (23) First, certain forms of investments in the federal courts are declining; federal filings have flattened since the 1980s and the mix of cases has shifted. (24) Second, about thirty percent of the plaintiffs bringing cases now proceed pro se, without counsel, at the trial level; (25) more than fifty percent do so on appeal. (26) These numbers include many people who are not prisoners. (27) Third, about forty percent of federal civil filings were, as of 2015, consolidated under the "multi-district litigation" statute, creating aggregate litigation with court-approved lead lawyers representing a significant number of plaintiffs who had filed individual lawsuits.

That courts are now populated with individuals lacking the means to use them well and in need...

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