Conservative & Libertarian Legal Scholarship: Federal Courts

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XIV. Federal Courts

Henry Hart & Herbert Wechsler, The Federal Courts and the Federal System (6th ed., 2009). This is one of the leading casebooks dealing with the jurisdiction of the federal courts. The authors examine the voluminous literature on the subject and provide a detailed and useful analysis of the role of the federal courts and the appropriate scope of their authority under Article III. Chapters 2 and 14 are particularly instructive.

Richard Posner, The Federal Courts: Challenge and Reform (1999). A substantially revised edition of his 1985 book, the author presents a detailed discussion of the current stresses on the federal judiciary, including the "caseload explosion" it has absorbed. Offers a wealth of statistical information, and a series of reforms designed to improve the performance of federal judges.

Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (1991). This book applies two principles of American political theory to the subject of federal court jurisdiction: the "representational" principle ("that, within constitutionally established boundaries, the representative branches of government may make policy decisions") and the "countermajoritarian" principle (that it is the job of the judiciary to adjudicate challenges to the political branches). It suggests that various federal jurisdictional doctrines be modified in light of the representational principle, and considers the impact of the countermajoritarian principle on the classic justiciability doctrines.

Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976). A leading article in support of an active judicial role in public law litigation, Chayes' piece provides an interesting contrast between the "received tradition" of the adversarial system and his own model of adjudication. Under the Chayes model, judges would play a more active role in the shaping of claims, discovery, inter-party negotiations, the issuance of decrees, and the monitoring of litigants' compliance with the court's orders. Chayes argues for nothing short of a wholesale reevaluation of the adversarial system. Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L.J. 1265 (1983). This review serves as an antidote to the reasoning of Abram Chayes and his vision of the judicial role in public law litigation. Horowitz examines the unintended consequences of the judiciary's attempt to manage public institutions, and also sheds light on the institutional and ideological changes that led to the dramatic shift towards court reform in this area.

Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274 (2006).  This article flushes out how courts have defined "judicially manageable standards," which result in nonjusticiable political questions.  Professor Fallon then identifies a series of criteria that guide courts, but concludes that the ultimate test is so discretionary that it could be considered judicially unmanageable.

Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts under Article III, 65 Ind. L.J. 233 (1990). In this article, Professor Bator critiques the "Simple Model" of judicial power, which views federal courts as having exclusive authority to adjudicate the types of cases enumerated under Article III. He also assesses various interpretive models for justifying the creation of legislative and administrative courts. In part, the article calls into question the idea that the powers of the Legislative, Executive, and Judicial Departments are readily ascertainable and distinct. Though some will no doubt disagree with Bator's conclusions, the analysis of Article III is informative, thoughtful, and balanced.

Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 Cornell L. Rev. 1672 (2003).  An examination of the practice of state certification of decisions by federal courts.  Prof. Nash argues that the certification process, despite its longstanding popularity and recognized benefits, likely exceeds the constitutional limits on federal jurisdiction.

Peter Mulhern, In Defense of the Political Question Doctrine, 137 U. Pa. L. Rev. 97 (1988). This article rejects the seemingly dominant view that the political question doctrine is an inappropriate abdication of judicial power. Professor Mulhern asserts that each department of the federal government has the prerogative (and, indeed, an obligation) to interpret the Constitution when acting within its own sphere of authority. The article has a slight twist, though-Mulhern applies Ronald Dworkin's "two-dimensional model of interpretation" in assessing the arguments against the political question doctrine.

David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985). In this article, Professor Shapiro takes issue with the idea that federal courts betray their mission when they are presented with a case within their Article III powers but refrain from hearing it for prudential reasons. For a similar, though broader critique, see: Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, 94 Geo. L.J. 121 (2005).   

Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483 (1928). In this leading review of diversity jurisdiction, Henry Friendly examines materials from the Constitutional Convention and the ratification debates, as well as Supreme Court decisions from the Republic's early years, and ultimately calls the historical basis of diversity jurisdiction into question. This is an excellent excursus into the debate over diversity. For a similar view, see David P. Currie, The Federal Courts and the American Law Institute, 36 U. Chi. L. Rev. 1 (1968).

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881 (1983). Justice (then-Judge) Scalia argues that standing is a "crucial and inseparable element" of the Constitution's separation of powers, and that judicial relaxation of the standing requirement "will inevitably produce-as it has during the past few decades-an overjudicialization of the processes of self-governance."

Michael Solimine & James Walker. Respecting State Courts:  The Inevitability of Judicial Federalism (1999). Solimine and Walker provide a comprehensive examination of major issues revolving around judicial federalism. They make the case that the existence and operation of this system is healthy for the development of law and the protection of liberty. This theme is developed through a discussion of the major issues in the literature of judicial federalism: federalism and rights, the parity of the state and federal courts, the civil litigation system, state court interpretations of their own constitutions, and the relationship of ideology to judicial federalism. Recognizing that there are and always have been serious shortcomings in this system, the authors point out that these problem areas can be remedied; the start of this remedial process necessitates a respect for the judicial institutions of the state.

John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997). This article presents a reading of the Article III vesting clause proposed by Akil Amar and complements an earlier critique of Amar's position by Daniel Meltzer. Meltzer focuses especially on the Federal Convention and the first Congress and takes issue with Amar's historical claims concerning the understanding of Article III around the time of the framing. Harrison then discusses the constitutional structure--the sum of all the texts--to which Amar also appeals.

John Harrison, Federal Appellate Jurisdiction over Questions of State Law in State Courts, 7 Green Bag 2d 353 (2004). In a short essay, Professor Harrison addresses whether in cases that involve contested federal elections, Congress may and should authorize the federal courts to exercise appellate jurisdiction over state courts that extends to questions of state law that are not entwined with questions of federal law. He argues that with respect to cases otherwise within the Article III jurisdiction, Congress may do so. He also suggests that there is good reason to believe that all cases involving federal office are within the Article III jurisdiction.

Jonathan Nash, Resuscitating Deference to Lower Federal Court Judges' Interpretations of State Law, 77 S. Cal. L. Rev. 975 (2004). This article examines the propriety of having federal courts afford deference to state law interpretations reached by lower federal court judges. Two Supreme Court decisions from the 1990s seemed substantially to circumscribe such deference. But in fact subsequent Court cases continue to afford deference. Moreover, such deference can be normatively valuable. This article argues in favor of the use of deference in appropriate circumstances, including situations where the district court and court of appeals agree on the proper interpretation of state law, and where answers to state law questions are obtained through an intrafederal certification regime.

Understanding the Federal Courts, Administrative Office of the U.S. Courts, 2003. Introduction to the federal judicial system, its organization and administration, and its relationship to the legislative and executive branches of the government. The brochure is available at:

Department of Justice, Guidelines on Constitutional Litigation (February 19, 1988). This is a very useful reference guide for those examining the jurisdiction and authority of the federal courts. Topics covered include: judiciability, exhaustion, guidelines for statutory interpretation, and guidelines for litigation involving individual liberties or the limited power of the federal government. The Guidelines are available online at

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Last updated October 2011

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