Who's afraid of Henry Hart?

• Author: Wells, Michael
• Position: Casebooks on federal courts law

No law book has enjoyed greater acclaim from distinguished commentators over a sustained period than has Hart & Wechsler's The Federal Courts and the Federal System.(1) Indeed, the praise seems to escalate from one edition to the next. Reviewing the first edition, published forty-three years ago, Philip Kurland called it "the definitive text on the subject of federal jurisdiction."(2) Paul Mishkin added that "the analysis is of an order difficult to match anywhere."(3) In his review of the second edition, published in 1973,(4) Henry Monaghan began by praising the first for having "deservedly achieved a reputation that is extraordinary among casebooks," and then continued. "[M]y view is that the second edition is at nearly every material point better than its predecessor."(5) When the third edition appeared in 1988,(6) Akhil Amar called the first edition "beautiful and brilliant," and thought the third "better in many respects."(7) No doubt similar encomia will greet the recently published fourth edition.(8) Certainly the research is as thorough, the analysis as trenchant, and the questions as probing as ever. Hart & Wechsler continues to set the standard that other books must aspire to meet.

Yet technical virtuosity and comparative merit are not the only tests by which a casebook may be judged. At the risk of losing my union card in the Federal Courts workshop, I propose to show that the editors, through all four editions, are fundamentally misguided in their approach to Federal Courts law. The main criteria for the selection and treatment of materials is a model of Federal Courts law elaborated by Henry Hart and Herbert Wechsler forty years ago, in the first edition, and called by one of the current editors the "Hart & Wechsler Paradigm."(9) The editors' premise is that a casebook should follow the Supreme Court's treatment of the doctrinal problems, asking questions about such matters as the adequacy of the Court's explanations, the implications of the Court's reasoning for the future, and consistency among the cases. According to the Court, and Hart & Wechsler, Federal Courts law is mainly an effort to achieve such worthy aims as striving for finality, for efficiency in litigation, and for uniformity in federal law, assigning cases on the basis of institutional competence, minimizing friction between federal and state courts, and avoiding unnecessary constitutional decisions. For the sake of convenience in exposition, I refer to this set of goals as "jurisdictional policy."

Jurisdictional policy does help to explain and justify Federal Courts law, but it does not deserve the status Hart & Wechsler accords it. Focusing their attention on jurisdictional policy, the editors fail to develop the substantive themes that animate much of Federal Courts law. The Supreme Court and, less often, Congress regularly set jurisdictional policy aside and employ Federal Courts law as a means of favoring one side or the other on the merits of the underlying litigation. For example, over the past two decades the Court has transformed federal habeas corpus by steadily chipping away at access to federal courts for state prisoners seeking to challenge their confinement on constitutional grounds.(10) While jurisdictional policies of promoting finality and respect for state procedures may help account for the Court's habeas cases, the Court's general substantive stand against broad constitutional rights of criminal procedure very likely influences these decisions as well. Though Hart & Wechsler mentions the political context of contemporary habeas law, the book contains not so much as a single note explicitly exploring the substantive theme, contenting itself with questions about the strength and implications of the jurisdictional policies advanced in the opinions.(11)

Hart & Wechsler's neglect of substantive aims produces a distorted picture of what the Supreme Court and Congress do in Federal Courts cases, and why they do it. In addition, shunting aside substantive themes hampers any examination of the normative question of whether and how much substance ought to count for in Federal Courts law. The very success of the book exacerbates the problem. As one of the current editors puts it, Hart & Wechsler "defined the field as we now know it" and exercises "pervasive influence on Federal Courts teaching and scholarship."(12) Other casebooks seek to imitate it, generally (according to casebook sales agents) by offering a "more teachable" version of Hart & Wechsler.(13) Scholars accept its premises as the foundation for their projects, often producing work that is not as incisive as it could be, simply because they do not grapple with an of the matters at stake in the cases.

This article questions the methodology Hart & Wechsler, and Federal Courts scholars who follow its lead, use in addressing Federal Courts issues. Part I lays out the Hart & Wechsler model of Federal Courts law. Part II distinguishes naked substance from jurisdictional policy and traces the impact of substantive themes on jurisdictional doctrine. Part III finds fault with the fourth edition's treatment of substance. Part IV explains why these themes are given little systematic attention by this and other casebooks. Part V argues that the editors are wrong to deemphasize them.

1. HART & WECHSLER'S FEDERAL COURTS LAW

   The worth and influence of a casebook depend largely on how much thought goes into the selection of materials. Anyone can gather cases bearing on a topic and assemble them in a bound volume. What is hard and valuable is to understand the area well enough to grasp its underlying structure. In this way a talented editor may abstract away from the mass of data and identify general normative and descriptive propositions that successfully represent the doctrine and its underpinnings. The great strength of Hart & Wechsler is the sophisticated model of Federal Courts law that underlies the materials. Richard Fallon, one of the editors of the fourth edition, calls the model the "Hart & Wechsler paradigm." The paradigm is never stated explicitly in the book itself, but is embedded in the choice of materials and the commentary on them. In describing it, I rely upon Fallon's article on the topic.

   As Fallon points out, the Hart & Wechsler paradigm is based on the theory of adjudication developed in the other great work Henry Hart produced in the 1950s, The Legal Process,(14) co-authored with Albert Sacks.(15) Some parts of the paradigm are Legal Process methodological precepts that apply to judicial decision making in general, whether the issue comes from Federal Courts, property, workers' compensation, or any other area. These include, for example, the "anti-positivist principle" that law should be conceived as "a rich, fluid, and evolving set of norms ... not as a positivist system of fixed and determinate rules,"(16) and "the principle of reasoned elaboration," that "the judicial role ... is limited to the reasoned elaboration of principles and policies that are ultimately traceable to more democratically legitimate decisionmakers."(17) I have examined these parts of the Hart & Wechsler paradigm in earlier articles.(18)

   Here I wish to take up the feature of the paradigm that bears most directly on Federal Courts law. This is the proposition that "questions of how decision-making authority should be allocated are of foremost importance."(19) Accordingly, The Federal Courts and the Federal System defined the field of Federal Courts in terms of allocations of authority among the branches of the national government and between the national and state governments.(20) The reason these questions of institutional design are so important lies in a proposition Hart and Sacks called "the principle of institutional settlement."(21)

   1. Institutional Settlement

      The principle of institutional settlement "expresses a judgment that decisions which are the duly arrived at result of duly established procedures ... ought to be accepted as binding on the whole society unless and until they are duly changed."(22) It would be a mistake to suppose that Hart and Sacks are merely stating the truism that we should obey the law. Dismissing institutional settlement in this way would seriously underappreciate its significance for Federal Courts law. Hart and Sacks call institutional settlement "the central idea of law," explaining that any society must provide for procedures to settle disputes about the content and application of law, whatever the substantive law may be.(23) In a small society, the constitutive arrangements may be as simple as a single ruler or a council of elders, but "in a complex modern society, the questions demanding settlement are too numerous" for such a solution. Moreover, in allocating these questions among governmental institutions, it is useful to keep in mind the varying competencies of courts, agencies, and legislatures, for "different procedures and personnel invariably prove to be appropriate for deciding different kinds of questions,"(24) and the arrangements will vary from one society to another.

      Though institutional settlement has received little explicit attention in Federal Courts scholarship, it is the central organizing principle of The Federal Courts and the Federal System.(25) Fallon correctly points out that "it comes close to defining the Federal Courts field all by itself."(26) In our system of government, the powers to settle disputes are distributed among institutions by means of federalism, which divides decision-making among the national and state governments, and the separation of powers, which splits up the power of the national government among the executive, legislative, and judicial branches.(27) In order to work out the implications of the principle of institutional settlement in our system, we must ask questions about the institutional competence of courts compared with other branches of government, and of state versus...