Columbia law school Public Law Legal Theory Working Paper Group aper Number 02-33 P Courts or Tribunals? Federal Courts and the common law BY Peter strauss Colum bia Law School Alabama Law Review, Forthcoming This paper can be downloaded without charge from the ocial Science Research Netork electronic library at httplpapers.ssrn.com/abstract=296031
Columbia Law School Public Law & Legal Theory Working Paper Group Paper Number 02-33 Courts or Tribunals? Federal Courts and the Common Law BY Peter L Strauss Columbia Law School Alabama Law Review, Forthcoming This paper can be downloaded without charge from the Social Science Research Network electronic library at: http//papers.ssrn.com/abstract=296031
DRAFT Please do not quote or cite without written permission Courts or Tribunals? Federal Courts and the Common law Peter L st I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. O w. Holmes, Collected Legal Papers 295-96(1920) I recognise without hesitation that judges do and must legislate, but they can do so only interstitially, they are confined from molar to molecular motions. A common-law judge could not say think the doctrine of consideration a bir of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say l think well of the common-law rules of master and servant and propose to introduce them here en bloc O W. Holmes, J, dissenting, in Southern Pacific Co v Jensen. 244 U.S. 205, 221(1917) TThe standard so fixed scarcely advances the solution in a concrete case, it only eliminates the egregious, leaving the tribunal a free hand to do as it thinks best. But that is inevitable unless liability is to be determined by a manual, mythically prolix, and fantastically impractical.. In the end Imy judgment may seem merely a fiat, but that is always true, whatever the disguise. Learned Hand in Sinram v. Pennsylvania R. Co., 61 F2d 767(1932) In his masterpiece, A Man For All Seasons, Robert Holt puts his protagonist, Thomas More, into conversation with his son-in-law Roper. Rich, an evil character who will bring More's downfall, has just left the stage Roper: While you talk he's gone M: And he should go, if he was the Devil himself, until he broke the law! R: So now you'd give the Devil the benefit of the law! M: Yes. What would you do Cut a great road through the law to get after the Devil? R; I'd cut down every law in England to do that! M: Oh? And when the last law was down and the devil turned round on youwhere would you Roper, the laws being all flat? This country's planted thick with laws fromcoast Vice Dean and Betts Professor of Law, Columbia University School of Law. Michael Dorf, Harold Edgar, Cynthia Farina, Helen Hershkoff, Larry Kramer, John Manning, Henry Monaghan, Jim Pfander, and a faculty workshop at Rutgers-Camden Law School all contributed thoughtful commentary on earlier drafts; any deficiencies this analysis are my doing only
DRAFT Please do not quote or cite without written permission * Vice Dean and Betts Professor of Law, Columbia University School of Law. Michael Dorf, Harold Edgar, Cynthia Farina, Helen Hershkoff, Larry Kramer, John Manning, Henry Monaghan, Jim Pfander, and a faculty workshop at Rutgers-Camden Law School all contributed thoughtful commentary on earlier drafts; any deficiencies in this analysis are my doing only. -1- Courts or Tribunals? Federal Courts and the Common Law Peter L Strauss* “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” O.W. Holmes, Collected Legal Papers 295-96 (1920). “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc." O.W. Holmes, J., dissenting, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) . “[T]he standard so fixed scarcely advances the solution in a concrete case; it only eliminates the egregious, leaving the tribunal a free hand to do as it thinks best. But that is inevitable unless liability is to be determined by a manual, mythically prolix, and fantastically impractical. ... In the end [my judgment] may seem merely a fiat, but that is always true, whatever the disguise.” Learned Hand in Sinram v. Pennsylvania R. Co., 61 F.2d 767 (1932). In his masterpiece, A Man For All Seasons, Robert Holt puts his protagonist, Thomas More, into conversation with his son-in-law Roper. Rich, an evil character who will bring More's downfall, has just left the stage: Roper: While you talk he's gone! M: And he should go, if he was the Devil himself, until he broke the law! R: So now you'd give the Devil the benefit of the law! M: Yes. What would you do? Cut a great road through the law to get after the Devil? R; I'd cut down every law in England to do that! M: Oh? And when the last law was down and the Devil turned round on you -- where would you hide, Roper, the laws being all flat? This country's planted thick with lawsfromcoast to coast --
DRAFT Please do not quote or cite without written permission man,s laws, not God's--and if you cut them down--and you're just the man to do it-d you really think you could stand upright in the winds that would blow then? [Quietly] Yes, Id give the Devil the benefit of law, for my own safety's sake These words stand nportant warning to us today, as we work to contain and destroy the devil himself. They can serve, too, to introduce the less dramatic subject i had chosen when you honored me with your invitationto give the Meador Lecture, well before the recent horrors so disturbed us all. I chose as my text a recent Supreme Court dictum that had seemed to me to knock over quite a few trees Raising up causes of action where a statute has not created them may be a proper function for common law courts but not for federal tribunals. What? When Article Ill established the federal judiciary its drafters imagined something other than a court, as that term would then have been conventionally understood, something different in kind from the black-robed members of state judiciaries? To invoke a special class of federal tribunal whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie, or the more recent contentions over when if ever it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes this seems to be about the nature of the institutions, not elements of their jurisdictionor prudential rules for the exercise of their powers. The question has a lot less importance than diverting the dagger currently aimed at America's heart and the worlds liberties. But the aside was uttered in Alexander y. Sandoval a case that came to the court from here in Alabama, and it directly evokes professor Meadors lifetime of scholarship about federal courts. At the time it was hard to imagine a more appropriate subject for this lecture; I hope you will forgive my continuing to address it, even as we honor our dead and confront yet again the truth of enduring evil in our world earlier, lonelier concurrence. And there is some reason to think that, so far as common law methadf Justice Antonin Scalia is the author of these words-he is quoting himself, as he likes to do, from concerned he remains alone. In another of last Term's decisions that i have written about in a different context, he was the sole dissenter from an opinion by Justice Souter that relied on the potential for case- by-case development of an imperfect statutory framework to resolve a difficult issue of federal administrative law-that is, the classic common law approach to resolution of an issue the Court concluded had not been crisply resolved by Congress or its prior decisions. Justice Scalia's dissent angrily insisted on forcing what would be, in my judgment, an unnatural and unwise reading, to avoid any such inquiry, necessarily subjective in his view. Justice Souter, writing for all the other members of the Court, remarked tha Alexander v. Sandoval, U.S.,(2001), quoting Justice Scalias separate concurrence in Lampf, Pleva, pkind, Prupis Petigrow v Gilbertson, 501 U.S. 350, 365(1991) e 2 Unied States v Mead Corp. 121 S Ct. 2164(2001 ), discussed in Peter L. Strauss, Publication Rules in the llemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L Rev. 803(2001) see lar Kramer, Judicial Asceticism, 12 Cardozo L Rev. 1789, 1798(1991
DRAFT Please do not quote or cite without written permission 1 Alexander v. Sandoval, U.S. , (2001), quoting Justice Scalia’s separate concurrence in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991). 2 Unied States v. Mead Corp. 121 S.Ct. 2164 (2001), discussed in Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin.L.Rev. 803 (2001); see Larry Kramer, Judicial Asceticism, 12 Cardozo L. Rev. 1789, 1798 (1991]. -2- man's laws, not God's -- and if you cut them down -- and you're just the man to do it – d'you really think you could stand upright in the windsthat would blowthen? [Quietly] Yes, I'd give the Devil the benefit of law, for my own safety's sake. These words stand as an important warning to us today, as we work to contain and destroy the Devil himself. They can serve, too, to introduce the less dramatic subject I had chosen when you honored me withyour invitationto give the Meador Lecture, well before the recent horrorsso disturbed us all. I chose as my text a recent Supreme Court dictum that had seemed to me to knock over quite a few trees: “Raising up causes of action where a statute has not created them may be a proper function for common law courts but not for federal tribunals.”1 What? When Article III established the federal judiciary its drafters imagined something other than a court, as that term would then have been conventionally understood, something different in kind from the black-robed members of state judiciaries? To invoke a special class of “federal tribunal” whose actions are not to be confused with those of commonlawcourts suggests broader implications than the long-familiar debates about Erie, or the more recent contentions over when if ever it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; thisseems to be about the nature of the institutions, not elements oftheir jurisdictionor prudentialrulesfor the exercise of their powers. The question has a lot less importance than diverting the dagger currently aimed at America’s heart and the world’s liberties. But the aside was uttered inAlexander v. Sandoval, a case that came to the Court from here in Alabama, and it directly evokes Professor Meador’s lifetime of scholarship about federal courts. At the time it was hard to imagine a more appropriate subject for this lecture; I hope you will forgive my continuing to address it, even as we honor our dead and confront yet again the truth of enduring evil in our world. Justice Antonin Scalia is the author of these words – he is quoting himself, as he likes to do, from an earlier, lonelier concurrence. And there is some reason to think that, so far as common law method is concerned he remains alone. In another of last Term’s decisions, that I have written about in a different context, he was the sole dissenter from an opinion by Justice Souter that relied on the potential for caseby-case development of an imperfect statutory framework to resolve a difficult issue of federal administrative law– that is, the classic commonlawapproachto resolutionof anissue the Court concluded had not been crisply resolved byCongress or its prior decisions.2 Justice Scalia’s dissent angrily insisted on forcing what would be, in my judgment, an unnatural and unwise reading, to avoid any such inquiry, necessarily subjective inhis view. Justice Souter, writing for all the other members of the Court, remarked that
DRAFT Please do not quote or cite without written permission Justice Scalia's first priority over the years has been to limit and simplify. The Courts choice has been to tailor deference to variety.. Our respective choices are repeated today Yet while the Court as whole continues, perhaps unsurprisingly, to deploy the familiar methods of the common law - insisting, notably, on the force of precedent as well as the possibility of case by case development of doctrine- its members also join with some regularity in expressing doubts, as in sandova about federal courts fashioning law in the common law way. Indeed, modern times have brought greater scholarly and judicial ferment about the judicial function than perhaps we have seen since the New Deal The Court s work and the commentators engender the sense of a virtual revolution, whether the subject is respect for congressional judgment about social fact, debates over the proper approach to statutory nterpretation,or-my subject tonight- suggestions that the courts of state judicial systems and the federal tribunals of the national judiciary fundamentally differ in their nature. America has gone through more thanone cycle of judicial activism and retreat-the activism sometimes in service ofliberal principles and sometimes conservative ones; the retreats often under the banner of expressed appreciation for the appropriate limits on judicial function. We are again, at least ostensibly, in a retreat phase. Yet thi retreat is marked by a quarrelsomeness in relation to Congress, a skepticism about its instructions, that should signal to us that not only judicial modesty is in the air. Professions abound that the courts should act as faithful servants of Congress in interpreting statutes, for example, yet one overhearing the conversations between master and servant- seeing how they bicker, how uninterested the servant appears to be in the context within which its master issued its instructions, how insistent it is on deploying its own sense of syntax-could wonder just how "faithful"is the service being rendered. While strong-minded judges and debates over the propriety of judicial activism are hardly a new phenomenon, all courts today - state as well as federal- face three linked challenges that put our common-law suppositions about judicial process under considerable stress. These are the increasingly 3 A. Christopher Bryant Timothy J. Simeone, Remanding to Congress: The Supreme Court's New"On the Record" Constitutional Review of Federal Statutes, 86 Cornell L Rev. 328 (2001); Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L J 1169(2001), William W. Buzbee Robert A Shapiro, Legislative Record Review, 54 Stan. L Rev. 87(2001); Larry Kramer, Foreword: We the Court, 115 Harv. L Rev. 1(Nov 2001), all discussing cases such as City of Boerne v. Flores, 521 U.S.507(199)and United States v. Morrison, 529 U.S. 598(2000). [add others] ning/Eskridge debates in Colum. L Re I am not the only commentator to find in the current phase a remarkable activism, in the sense that the Court is essentially dismissive of settled expectations, either of the legal community or of the legislature, in pursuing its own vision of the proper state of the law. Kramer, Aleinikoff Shaw, Strauss(SupCtRev ), others? >o 6 francis LieberLegal and Political Hermeneutics 28-31(1839); Peter L. Strauss, the Common Law and Statutes U Colo. L Rev. 225(1999); Stevens in WUVH, 449 U. S.83(1991); Reynolds v. Martin, 985 F/2d 470, 475n. 2(1993)
DRAFT Please do not quote or cite without written permission 3 A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court’s New “On the Record” Constitutional Review of Federal Statutes, 86 Cornell L.Rev. 328 (2001); Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L.J. 1169 (2001), William W. Buzbee & Robert A. Shapiro, Legislative Record Review, 54 Stan. L.Rev.87 (2001); Larry Kramer, Foreword: We the Court , 115 Harv.L.Rev. 1 (Nov. 2001), all discussing cases such as City of Boerne v. Flores, 521 U.S. 507 (199 ) and United States v. Morrison, 529 U.S. 598 (2000). [add others] 4 Manning/Eskridge debates in Colum.L.Rev. 5 I am not the only commentator to find in the current phase a remarkable activism, in the sense that the Court is essentially dismissive of settled expectations, either of the legal community or of the legislature, in pursuing its own vision of the proper state of the law. Kramer, Aleinikoff & Shaw, Strauss (SupCtRev), others? 6 Francis LieberLegal and Political Hermeneutics 28-31 (1839); Peter L. Strauss, the Common Law and Statutes, 70 U.Colo.L.Rev. 225 (1999); Stevens in WUVH, 449 U.S. 83 (1991); Reynolds v. Martin, 985 F/2d 470, 475 n. 2 (1993). -3- “Justice Scalia’s first priority overthe years has beento limit and simplify. The Court’s choice has been to tailor deference to variety. ... Our respective choices are repeated today.” Yet while the Court as whole continues, perhaps unsurprisingly, to deploythe familiar methods of the common law – insisting, notably, on the force of precedent as well as the possibility of case by case development ofdoctrine – itsmembers also joinwithsome regularityinexpressingdoubts, asinSandoval, about federal courts fashioning law in the common law way. Indeed, modern times have brought greater scholarly and judicial ferment about the judicial function than perhaps we have seen since the New Deal. The Court’s work and the commentators engender the sense of a virtual revolution, whether the subject is respect for congressional judgment about social fact,3 debates over the proper approach to statutory interpretation,4 or – my subject tonight – suggestions that the courts of state judicial systems and the “federal tribunals” of the nationaljudiciary fundamentally differ in their nature. America has gone through more thanone cycle of judicial activism and retreat – the activismsometimesinservice ofliberalprinciples and sometimes conservative ones; the retreats often under the banner of expressed appreciation for the appropriate limits on judicial function. We are again, at least ostensibly,5 in a retreat phase. Yet this retreat is marked by a quarrelsomeness in relation to Congress, a skepticism about its instructions, that should signal to us that not only judicialmodestyisinthe air. Professions abound that the courts should act as faithful servants ofCongressininterpreting statutes, for example; yet one overhearing the conversations between master and servant – seeing how they bicker, how uninterested the servant appears to be in the context within which its master issued its instructions, how insistent it is on deploying its own sense of syntax – could wonder just how “faithful” is the service being rendered.6 While strong-minded judges and debates over the propriety of judicial activism are hardly a new phenomenon, all courts today – state as well as federal – face three linked challenges that put our common-law suppositions about judicial process under considerable stress. These are the increasingly
DRAFT Please do not quote or cite without written permission statutory character of law, the proliferation of legal issues, and the explosionof judicial dockets. We could see an number of linked results from these challenges a heightening of judicial discretion over what issues get decided; an emphasis then on law-making rather than case-deciding as the basis on which this discretion gets exercised; a dramatically lowered exposure of trial and intermediate courts to principled public correction; and a temptation for the high court, then, to speak in simple terms it might expect to have broad impact rather than respond to the subtle particulars ofcomplex facts. I want just briefly to set thes challenges and their results before you, and then turn to some recent Supreme Court decisions that may illustrate the troubles, and shed some light on Justice Scalia's sandoval claim There are many important differences between todays courts and those the Framers might have imagined- our very ideas about such matters as precedent and stare decisis, as Judge Alex Kozinski pointed out in an interesting opinion published last month, owe a great deal to conventions about the writing and publication of opinions that did not emerge until the Nineteenth Century. Among the most mportant of these differences, in my judgment, is the conversion of appellate review into a discretionary exercise substantially controlled, for its own ends, by the reviewing court. We have conferred on the judiciary's highest levels essentially free choice whento act; and our expectations are that they will choose with reference to law-making rather than party claim to justice. Whether we imagine judicial lawmaking as secondary or primary, these changes transform and deeply challenge the rationales we have for tolerating it. Prior to this century, to the extent people understood that courts independently shaped the law, they would have understood that this function- what we can call the common law function- emerged from the necessity to decide cases according to reason driven by party fact. This was a passive function, a corollary of the obligation to decide, according to reason, any matters that parties put before them. One looked first to established principle to the force of stare decisis; if existing law did not control, the court still had to decide-and the absence of controlling principle did not entail an automatic judgment for defendant. Rather, the court was then to look to considerations of justice what analogy to the established structures of law best fit the facts on whichthe court was compelled to render decision-and of policy-what outcome would best govern future cases that the court could imagine following upon this one, once decision in the pending matter had acquired precedential force. The obligation to decide not only excused the judicial presumption in lawmaking- new law was merely and unavoidably its byproduct, the preferable alternative to automatically dismissing claims not previously provided for-the obligation to 7 Hart y Masanari s But see Edward Hartnett, Questioning Certiorari 9 Viz., "It is admitted that there is no precedent for the present action by a servant against a master.We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other. " Priestly v. Fowler, 3 Mees, Wells 1, 150 Eng Rep. 1030 (Exchequer of Pleas 1837)
DRAFT Please do not quote or cite without written permission 7 Hart v. Massanari 8 But see Edward Hartnett, Questioning Certiorari 9 Viz., “It is admitted that there is no precedent for the present action by a servant against a master. We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other.” Priestly v. Fowler, 3 Mees, & Wells 1, 150 Eng.Rep. 1030 (Exchequer of Pleas 1837). -4- statutorycharacter oflaw, the proliferation oflegalissues, and the explosionofjudicialdockets. We could see an number of linked results from these challenges:a heightening ofjudicial discretion over what issues get decided; an emphasis then on law-making rather than case-deciding as the basis on which this discretion gets exercised; a dramatically lowered exposure of trial and intermediate courts to principled public correction; and a temptationforthe highcourt, then, to speak insimple terms it might expect to have broad impact ratherthanrespond to the subtle particulars of complexfacts. I want just briefly to set these challenges and their results before you, and then turn to some recent Supreme Court decisions that may illustrate the troubles, and shed some light on Justice Scalia’s Sandoval claim. There are many important differences between today’s courts and those the Framers might have imagined – our very ideas about such matters as precedent and stare decisis, as Judge Alex Kozinski pointed out in an interesting opinion published last month, 7 owe a great deal to conventions about the writing and publication of opinions that did not emerge until the Nineteenth Century. Among the most important of these differences, in my judgment, is the conversion of appellate review into a discretionary exercise substantially controlled, for its own ends, by the reviewing court.8 We have conferred on the judiciary’s highest levels essentially free choice whento act; and our expectations are that theywill choose with reference to law-making rather than party claim to justice. Whether we imagine judicial lawmaking as secondary or primary, these changes transform and deeply challenge the rationales we have for tolerating it. Prior to this century, to the extent people understood that courts independently shaped the law, they would have understood that thisfunction– what we can call the common law function– emerged fromthe necessity to decide cases according to reason driven by party fact. This was a passive function, a corollary of the obligation to decide, according to reason, any matters that parties put before them. One looked first to established principle, to the force of stare decisis; if existing law did not control, the court still had to decide – and the absence of controlling principle did not entail an automatic judgment for defendant.9 Rather, the court was then to look to considerations of justice – what analogy to the established structures of law best fit the facts onwhichthe court was compelled to render decision – and of policy – what outcome would best govern future cases that the court could imagine following upon this one, once decision in the pending matter had acquired precedential force. The obligation to decide not only excused the judicialpresumptioninlawmaking – new law was merely and unavoidably its byproduct, the preferable alternative to automatically dismissing claims not previously provided for – the obligation to
DRAFT Please do not quote or cite without written permission decide also gave the polity some assurance against programmatic judicial lawmaking. The parties chos the disputes, not the courts; the necessary force of the court's decision was limited to the material facts of the case before it, the facts of the next case, uncontrollable by the judges, might well compel a conclusion looking in quite the opposite direction from its predecessor. Common law development was in this sense the product of an invisible hand, if you like, that ineluctably provided corrections to doctrinal drift in one directionby generating the facts and disputes that would illustrate its dangers. The " work of modification, Benjamin Cardozo remarked in his famous lectures on The Nature of the Judicial Process, goes on inch y inch. Its effects must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier. They grow out of repeated exposures to fact and perspective, exposures over which the judiciary had little control Justice Holmes, in an oft-cited dissenting passage, framed this understood authority in a way that highlighted its subsidiary character: I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc. I The necessity of the case, within the pre-existing general framework, set the confines within which judges could act and, in acting, further confine those whose judgment would follow after theirs How different the judicial function has become since the Judges Bill created a power to choose which matters our highest court would hear! Decision is no longer a necessity, nor new law merely its by product. A court with certiorari authority is not merely able, but is expected, to choose its targets with reference to what law seems most important to enunciate. Having thousands of petitions from which to select, say, 100 controversies for decisionenables judges to have agendas. It encourages them to spe more broadly than the particular facts before them require counsel against that as we may 3 It permit them to defend themselves against the inconvenience of facts that might appear to compel movement opposite to the direction they prefer. And, thus, it inevitably heightens our sense that in appointing judges we are appointing lawmakers and should be concerned with the kinds of law they are likely to make Freed from the discipline of the unavoidable call of justice, lured by the opportunity, perhap 10 Lecture I. following n. 19 I Southern Pacific Co. v. Jensen, 244 U.S. 205, 221(dissent; 1917) 12 Numbers from the last Term in paid and pro bono dockets, HLR Cass Sunstein, Leaving Things Undecided, 1 10 Harv. L Rev. 4(1996)and One Case at a Time 10-11 and Ch (1999
DRAFT Please do not quote or cite without written permission 10 Lecture I, following n. 19. 11 Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (dissent;1917). 12 Numbers from the last Term in paid and pro bono dockets, HLR. 13 Cass Sunstein, Leaving Things Undecided, 110 Harv.L.Rev. 4 (1996) and One Case at a Time 10-11 and Ch. 9 (1999). -5- decide also gave the polity some assurance against programmatic judicial lawmaking. The parties chose the disputes, not the courts; the necessary force of the court’s decision waslimited to the materialfacts of the case before it; the facts of the next case, uncontrollable by the judges, might well compela conclusion looking inquite the opposite direction from its predecessor. Common law development was in this sense the product of an invisible hand, if you like, that ineluctably provided corrections to doctrinal drift in one directionbygenerating the facts and disputesthat would illustrate its dangers. The “work ofmodification,” Benjamin Cardozo remarked in his famous lectures on The Nature of the JudicialProcess, “goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier.”10 They grow out of repeated exposures to fact and perspective, exposures over which the judiciary had little control. Justice Holmes, in an oft-cited dissenting passage, framed this understood authority in a way that highlighted its subsidiary character: I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined frommolar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc.11 The necessityof the case, within the pre-existing general framework, set the confines within whichjudges could act and, in acting, further confine those whose judgment would follow after theirs. Howdifferent the judicialfunction has become since the Judges’Billcreated a power to choose which matters our highest court would hear! Decision is no longer a necessity, nor new law merely its byproduct. A court with certiorari authority is not merely able, but is expected, to choose its targets with reference to what law seems most important to enunciate. Having thousands of petitions from which to select,say, 100 controversiesfor decision12 enables judges to have agendas. It encourages them to speak more broadly than the particular facts before them require, counsel against that as we may.13 It permits them to defend themselves against the inconvenience of facts that might appear to compel movement opposite to the direction they prefer. And, thus, it inevitably heightens our sense that in appointing judges we are appointing lawmakers and should be concerned with the kinds of law they are likely to make. Freed from the discipline of the unavoidable call of justice, lured by the opportunity, perhaps even felt as
DRAFT Please do not quote or cite without written permission responsibility, to speak broadly, the judge can shape her agenda as she chooses. We are used to this in itigants, but not in judges. Even at intermediate levels of review, where appeal is a matter of right, the realities ofopinion-writing and publication% of decisions rendered essentially invisible to any but the immediate parties-entail similar possibilities and effects. 4 Not often are the courts as candid about their power as was the New york Court of Appeals when cemented for New york the change in tort law george priest has characterized as "a radical overturn of 300 years of civil jurisprudence. Its opinion opened with this remarkable sentence We granted leave to appeal in order to take another step toward a complete solution of the problem partially cleared up in [two prior cases, both of which were decided after the making of the orders being appealed from] While such candor is not often seen, and in this common law context the new york legislature could have corrected the court had it wished to the state of mind toward judicial function thus revealed is striking different from what we ordinarily assume in rationalizing judicial development of the common law The limitations on decisionat the highest courts not only tend to highlight their lawmaking function, but also suggest threaten the viabil ity of the context-specific techniques of common-law reasoning. Dockets have swollen, and legal questions multiplied, but not the institution responsible for managing them. Thus, the very changes that called forth the certiorari function have strong implications for the Supreme Courts possibility of generating coherence in the legal order, or effectively controlling the actions of lower courts Questions arising under any one of the dozens of complex federal statutory schemes, with enormous financial or social consequences, will not be heard even once a year, no familiarity with that statute and its administration will result. Acircuit judge who might have expected his written opinions to gain the Courts attention three times a year when the Judges Bill was enacted, today must know that this will occur, on average, less oftenthan once inthree years. We head towards one law for the Ninth Circuit, another for the Third The Justices of the Supreme Court, then, face a considerable temptation to follow Justice Scalia into relatively simple, either-or, bright-line rules -approaches that avoid the rich contextualism and modesty ofclassic common lawreasoning, yet might from the Court ' s perspective seem to promise control over adventurism in the lower echelons of the federal judiciary 8 Consider in this respect the debate between the Eighth Circuit, Judge Arnold writing, Anastasoff v. United es, 223 F3d 898, vacated as moot on reh g en banc, 235 F 3d 1054(8th Cir. 2000)and the Ninth, per Judge inski, Hart v. Massanari, 2001 U.S. App. Lexis 20863, F3d (9/2001) George Priest, Strict Products Liability: The Original Intent, 10 Cardozo L Rev. 2301, 2302, 2329(1989) 16 Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432(1963) Strauss. 150 Cases i8 Id. Schauer on textualism as a second best -6
DRAFT Please do not quote or cite without written permission 14 Consider in this respect the debate between the Eighth Circuit, Judge Arnold writing, Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000) and the Ninth, per Judge Kozinski, Hart v. Massanari, 2001 U.S. App. Lexis 20863, F.3d (9/2001). 15 George Priest, Strict Products Liability: The Original Intent, 10 Cardozo L. Rev.2301, 2302, 2329 (1989). 16 Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432 (1963). 17 Strauss, 150 Cases. 18 Id.; Schauer on textualism as a second best. -6- responsibility, to speak broadly, the judge can shape her agenda as she chooses. We are used to this in litigants, but not in judges. Even at intermediate levels of review, where appeal is a matter of right, the realities ofopinion-writing and publication – 80% of decisions rendered essentially invisible to any but the immediate parties – entail similar possibilities and effects.14 Not often are the courts as candid about their power as was the New York Court of Appeals when it cemented for New York the change in tort law George Priest has characterized as “a radical overturn of 300 years of civil jurisprudence.”15 Its opinion opened with this remarkable sentence: We granted leave to appeal in order to take another step toward a complete solution of the problem partially cleared up in [two prior cases, both of which were decided after the making of the orders being appealed from].16 While such candor is not often seen, and inthis commonlawcontext the New York legislature could have corrected the court had it wished to, the state of mind toward judicial function thus revealed is strikingly different from what we ordinarily assume in rationalizing judicial development of the common law. The limitations ondecisionat the highest courts not only tend to highlight their lawmaking function, but also suggest threaten the viability of the context-specific techniques of common-law reasoning. Dockets have swollen, and legal questions multiplied, but not the institution responsible for managing them. Thus, the very changes that called forththe certiorari function have strong implications for the Supreme Court’s possibility of generating coherence in the legal order, or effectively controlling the actions of lower courts. Questions arising under any one of the dozens of complex federal statutory schemes, with enormous financialorsocialconsequences, will not be heard even once a year; no familiarity with that statute and its administration will result. Acircuit judge who might have expected his writtenopinions to gain the Court’s attention three times a year when the Judges’ Bill was enacted, today must know that this will occur, on average, less oftenthanonce inthree years.17 We head towards one law for the Ninth Circuit, another for the Third. The Justices of the Supreme Court, then, face a considerable temptation to follow Justice Scalia into relatively simple, either-or, bright-line rules – approaches that avoid the rich contextualism and modestyof classic commonlawreasoning, yetmight fromthe Court’s perspective seemto promise control over adventurism in the lower echelons of the federal judiciary.18
DRAFT Please do not quote or cite without written permission Thus, we might think courts-and not just federal courts-ought to be thought of in contemporar rms,certainly in terms transformed from what the framers might have imagined. That rethinking is perhaps especially called for in constitutional contexts, where the Supreme Courts voice tends to exclude the possibility of dialogue with Congress. You will want to read Professor Larry Kramer's important Foreword to the November issue of the Harvard Law Review, that I had the privilege to read as a paper he delivered to my faculty this September. But my interest is at the more mundane level of ordinary law federal and state statutes, regulations, and the common law. Here, what the courts do legislatures can undo, and one can fairly imagine the continuing processes that engage Congress, the agencies and the courts as a kind of continuing dialogue. If not in a century ago, in today's statute and agency-dominated world, we can fairly characterize the judicial role in this dialogue as secondary -yet it is not absent, and it is here that Justice Scalia's trenchant observation intrigues me. If in the constitutional context, as Prof. Kramer argues, the Courts approach essentially excludes Congress from voice, in this more ordinary setting it appears to be denying its own law-generating competence 20 Let me start by putting in front of you a contrasting formulation to Justice Scalias, framed by Justic Robert Jackson in the immediate wake of Erie rR v. tompkins one of those few cases i think i can mention without having to tell you about it-at least for the moment The federal courts have no general common law, as in a sense they have no general or comprehensive jurisprudence of any kind, because many subjects of private law which bulk large in the traditional common law are ordinarily within the province of the states and not of the federal government. But this is not to say that wherever we have occasion to decide a federal question hich cannot be answered from federal statutes alone we may not resort to all of the source materials of the common law or that when we have fashioned an answer it does not become a part of the federal non-statutory or common law .. Were we bereft of the common law, our federal statutory codes, and is apparent from the terms of the Constitution itself empting all-complete system would be impotent. This follows from the recognized futility of at For Justice Jackson, the field on which the Court might play was indeed a function of federal authorit In contrast to state law federal law is invariably interstitial and so cannot be general. Yet that does not render federal courts special tribunals, different in their nature from the common law courts of the states Were we bereft of the common law, our federal system would be impotent principally this afternoon about the little-noticed majority and dissenting opinions in Larry Kramer, We the Court, 1 15 Harv. L Rev. 1 (2001) 20 My thanks to Professor Kramer for suggesting this striking link between our papers 2 D'Oench, Duhme & Co v FDIC,315 U.S.447, 471(Jackson,J
DRAFT Please do not quote or cite without written permission 19 Larry Kramer, We the Court, 115 Harv.L.Rev. 1 (2001). 20 My thanks to Professor Kramer for suggesting this striking link between our papers. 21 D’Oench, Duhme & Co v. FDIC, 315 U.S. 447, 471 (Jackson, J., concurring) -7- Thus, we might think courts – and not just federal courts – ought to be thought of in contemporary terms, certainly in terms transformed from what the Framers might have imagined. That rethinking is perhaps especially called for in constitutionalcontexts, where the Supreme Court’s voice tendsto exclude the possibility of dialogue with Congress. You will want to read Professor Larry Kramer’s important Foreword to the November issue of the Harvard Law Review, that I had the privilege to read as a paper he delivered to my facultythis September.19 But my interest is at the more mundane level of ordinary law – federal and state statutes, regulations, and the common law. Here, what the courts do legislatures can undo, and one can fairly imagine the continuing processes that engage Congress, the agencies and the courts as a kind of continuing dialogue. If not in a century ago, in today’s statute and agency-dominated world, we can fairly characterize the judicial role in this dialogue as secondary – yet it is not absent, and it is here that Justice Scalia’s trenchant observation intrigues me. If in the constitutional context, as Prof. Kramer argues, the Court’s approach essentially excludes Congress from voice, in this more ordinary setting it appears to be denying its own law-generating competence.20 Let me start by putting in front of you a contrasting formulation to Justice Scalia’s, framed by Justice Robert Jackson in the immediate wake of Erie RR. v. Tompkins, one of those few cases I think I can mention without having to tell you about it – at least for the moment: The federal courts have no general common law, as in a sense they have no general or comprehensive jurisprudence of any kind, because many subjects of private law which bulk large in the traditionalcommonlaware ordinarilywithin the province of the states and not of the federal government. But this is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all of the source materials of the common law or that whenwe have fashioned ananswerit does not become a part of the federal non-statutory or common law. ... Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself.21 ForJustice Jackson, the field on which the Court might playwasindeed a functionoffederalauthority. In contrast to state law federal law is invariably interstitial and so cannot be “general.” Yet that does not render federalcourtsspecial“tribunals,”different intheir nature from the common law courts ofthe states. “Were we bereft of the common law, our federal system would be impotent.” I mean to speak principally this afternoon about the little-noticed majority and dissenting opinions in
DRAFT Please do not quote or cite without written permission Alexis Geier v. American Honda Motor Company, Inc, a 5-4 decision from the next previous Term of the Supreme Court. Three of the four dissenting Justices in Geier also dissented from Sandoval, and so did not subscribe to that majority's federal tribunals"characterization. Yet their Geier dissent seemed strongly to express the same sentiment, that federal judges and state judges are different in kind. That is where we will spend most ofour remaining time. Before turning to Geier, however, I want first briefly to set before you some other illustrations of this problem, to set its context. One, about which I have previously written, is thethe Supreme Courts 1994 decision in Central Bank of Denver v First Interstate Bank of Denver:. The question in the lower courts had been how to understand Central Bank's possible liability for aiding and abetting others' violations of SEC Rule 10b(5)in a private action First Interstate had brought under the authority of that rule. The possibility of private actions under Rule 10b(5) had long been established. For at least sixteen years, the SEC had been bringing enforcement actions against alleged aiders and abetters; all elevencircuit courts of appeal to face the question had also sustained private actions against aiders and abetters; Congress had thoroughly revised the securities statutes without any question being raised about this development. In the certiorari process seeking Supreme Court review, as well, the papers suggested no issue on this score. In a common law world, one would say the issue of aider and abettor liability had come to rest. The Supreme Court, however, reached out and asked for argument on the question; it then decided, on the basis of its conclusions about what the 1934 Congress had enacted, that aider and abettor liability could not be sustained. That judgment about the understanding of the Congress in 1934 might have been right or it might have been wrong. Justice Stevens, writing in dissent for four Justices, plausibly argued that the majority's interpretation was, to say the least, anachronistic. What I want to call to attention to for present purposes is the Courts striking independence in reaching out for an issue that parties had not raised, yet which served an agenda reflected in many decisions of the current majority, most recently Sandoval itself that of subordinating private actions for the enforcement of federal regimes, that have not been directly provided for by statute. The Court used its certiorari prerogative to serve its own policy ends. And, as in Sandoval, those ends were to deny conventional common law moves to federal courts-and thus to terminate any sense of continuing legislative/executive/judicial conversationabout the development of law, any sense of partnership in which courts provisionally work toward integration. 4 In the Central Bank 22Cite2000 23511 U.S. 164(1994); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Supreme Court Review 429, 509 ff.(1995) It is important to distinguish here between the proposition that it is improper on, as it were, separation of power grounds for federal courts to infer a remedy Congress has not provided for, and the conclusion that a particular statutory scheme signals by its complexity, or by the judgments that have apparently been made, that it would be inappropriate to that statue to infer such a remedy. See, e.g., Block v Community Nutrition Inst. 467Us 340(1984). A standard judicial move, which until rather recently a member of Congress would have had every reason to expect, might indeed be inappropriate in particular circumstances, but thaty is not the voice of these opinions -8-
DRAFT Please do not quote or cite without written permission 22 Cite [2000] 23 511 U.S. 164 (1994); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law,1994 Supreme Court Review 429, 509 ff. (1995). 24 It is important to distinguish here between the proposition that it is improper on, as it were, separation of power grounds for federal courts to infer a remedy Congress has not provided for, and the conclusion that a particular statutory scheme signals by its complexity, or by the judgments that have apparently been made, that it would be inappropriate to that statue to infer such a remedy. See, e.g., Block v. Community Nutrition Inst.., 467 U.S. 340 (1984). A standard judicial move, which until rather recently a member of Congress would have had every reason to expect, might indeed be inappropriate in particular circumstances, but thaty is not the voice of these opinions. -8- Alexis Geier v. American Honda Motor Company, Inc.,22 a 5-4 decision from the next previous Term of the Supreme Court. Three of the four dissenting Justices in Geier also dissented from Sandoval, and so did notsubscribe to that majority’s “federaltribunals”characterization. Yet their Geier dissent seemed strongly to express the same sentiment, that federal judges and state judges are different in kind. That is where we will spend most ofour remaining time. Before turning to Geier, however, I want first briefly to set before you some other illustrations of this problem, to set its context. One, about which I have previously written, is the the Supreme Court’s 1994 decision in Central Bank of Denver v. First Interstate Bank of Denver.23 The question in the lower courts had beenhow to understand Central Bank’s possible liability for aiding and abetting others’ violations of SEC Rule 10b(5) in a private action First Interstate had brought under the authority of that rule. The possibility of private actions under Rule 10b(5) had long beenestablished. For at least sixteen years, the SEC had been bringing enforcement actions against alleged aiders and abetters; all elevencircuit courts of appealto face the question had also sustained private actions against aiders and abetters; Congress had thoroughly revised the securities statutes without any question being raised about this development. In the certiorari process seeking Supreme Court review, as well, the papers suggested no issue on this score. In a common law world, one would saythe issue of aider and abettor liability had come to rest. The Supreme Court, however, reached out and asked for argument on the question; it then decided, on the basis of its conclusions about what the 1934 Congress had enacted, that aider and abettor liability could not be sustained. That judgment about the understanding of the Congress in 1934 might have been right or it might have been wrong. Justice Stevens, writing in dissent for four Justices, plausibly argued that the majority’sinterpretation was, to say the least, anachronistic. What I want to call to attention to for present purposes is the Court’s striking independence in reaching out for an issue that parties had not raised, yet which served an agenda reflected inmany decisions ofthe current majority, most recently Sandoval itself – that of subordinating private actions for the enforcement of federal regimes, that have not been directly provided for by statute. The Court used its certiorari prerogative to serve its own policy ends. And, as in Sandoval, those ends were to deny conventional common law moves to federal courts – and thus to terminate any sense of continuing legislative/executive/judicialconversationabout the development of law, any sense of partnership in which courts provisionally work toward integration.24 In the Central Bank
DRAFT Please do not quote or cite without written permission majoritys contemplation, statutes and regulations are static texts -subject to future development only by the legislature or executive, yet to be accorded meaning by courts applying their own and rather independent syntactic views. 5 This want of sensitivity and attention to the possibilities of integration is suggested by an opinion from the Term just ended. Egelhoff v. egelhoff presented questions of preemption of state law by federal another context where one might expect the fact-driven and cautious processes of the common law to dominate. David Egelhoff died intestate just two months after finalizing his divorce from his wife Donna. Under the terms of their settlement, she had received a business, an iRa account, and stock he had retained 100% ownership of his pension and life insurance under his employer's plan. That plan was subject to ERISA, the federal statute regulating retirement plans. He had neglected to redesignate the beneficiaries under these benefits, so that when he died the primary beneficiary named in his policy remained"Donna Egelhoff wife. " A Washington state statute provided for this contingency; in such a case it said, non-probate assets should pass as if the divorced spouse had predeceased the decedent. Thus, they would go to his secondary beneficiaries under the plan, his children. ERISA, on the other hand, states that the federal statute"shall supersede any and all State laws insofar as they may now or hereafter relate to any employment benefit plan. Acknowledging that the operative terms, " relate to, were so indefinite as to threaten infinite preemptionof state law, Justice Thomas's majority opinion nonetheless found that a state rule specifying a beneficiary other than the one mentioned in the plan would unacceptably burden plan administrators and so must be regarded as preempted It is striking that the majority, whose members have generally been so solicitous ofstate interests, gave the federal statute such broad sweep. As Justice Breyer's dissent observed, Washington law would be permitted to govern if Donna had actually predeceased David (or had murdered him); there is no necessary conflict with the federal statute the injustice of the result commanded by the majority opinion is transparent; and it interferes with state judgments in contexts, those of inheritance and the consequences of marital dissolution, that are of central importance to state and not federal policy. It is virtually inconceivable that Congress would have chosen this outcome, the plan in terms contained provisions nting at David's children as beneficiaries if his beneficiary designation was invalid - and making the designation invalid was what state law accomplished. The majority s response to these arguments was to advance highly improbable hypotheticals which, it asserted, could not be distinguished in principle from the case at hand. Even acknowledging the indeterminacy of the statutory language, it is as if they feared acknowledging any responsibility for reconciling state and federal law for themselves; it must all be placed in the lap of Congress or, rather, Congress's language as the judges chose to read it. For the dissent, tl better course would be to applyi pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to 25 Cf. United States v. Mead Corp., (Scalia, J, dissenting)
DRAFT Please do not quote or cite without written permission 25 Cf. United States v. Mead Corp., (Scalia, J., dissenting). 26 Cite -9- majority’s contemplation, statutes and regulations are static texts – subject to future development only by the legislature or executive, yet to be accorded meaning by courts applying their own and rather independent syntactic views.25 This want of sensitivity and attention to the possibilities of integrationis suggested by an opinion from the Term just ended. Egelhoff v. Egelhoff26 presented questions of preemption of state law by federal, another context where one might expect the fact-driven and cautious processes of the common law to dominate. David Egelhoff died intestate just two months after finalizing his divorce from his wife Donna. Under the terms of their settlement, she had received a business, an IRA account, and stock; he had retained 100% ownership of his pension and life insurance under his employer’s plan. That plan was subject to ERISA, the federal statute regulating retirement plans. He had neglected to redesignate the beneficiaries under these benefits, so that when he died the primary beneficiary named in his policy remained “Donna Egelhoffwife.” A Washington state statute provided for this contingency; in such a case, it said, non-probate assets should pass as if the divorced spouse had predeceased the decedent. Thus, theywould go to hissecondarybeneficiaries underthe plan, his children. ERISA, on the other hand, states that the federal statute “shall supersede any and all State laws insofar astheymaynow or hereafter relate to any employment benefit plan.” Acknowledging that the operative terms, “relate to,” were so indefinite as to threaten infinite preemptionofstate law, Justice Thomas’s majority opinion nonetheless found that a state rule specifying a beneficiaryotherthanthe one mentioned inthe planwould unacceptably burdenplan administrators and so must be regarded as preempted. It is striking that the majority, whose members have generally beenso solicitous ofstate interests, gave the federal statute such broad sweep. As Justice Breyer’s dissent observed, Washington law would be permitted to govern if Donna had actually predeceased David (or had murdered him); there is no necessaryconflictwiththe federalstatute; the injustice of the result commanded by the majority opinion is transparent; and it interferes with state judgments in contexts, those of inheritance and the consequences of marital dissolution, that are of central importance to state and not federal policy. It is virtually inconceivable that Congress would have chosen this outcome; the plan in terms contained provisions pointing at David’s children as beneficiaries if his beneficiary designation was invalid – and making the designation invalid was what state law accomplished. The majority’sresponse to these arguments wasto advance highlyimprobable hypotheticals which, it asserted, could not be distinguished in principle fromthe case at hand. Even acknowledging the indeterminacy of the statutory language, it is as if they feared acknowledging any responsibility for reconciling state and federal law forthemselves; it must allbe placed in the lap of Congress or, rather, Congress’slanguage as the judges chose to read it. For the dissent, the better course would be to “apply[] pre-emptionanalysis withcare, statute by statute, line by line, in order to determine how best to reconcile a federal statute’s language and purpose with federalism’s need to