DRAFT Please do not quote or cite without written permission Alexis Geier v. American Honda Motor Company, Inc, a 5-4 decision from the next previous Term of the Supreme Court.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