DRAFT Please do not quote or cite without written permission man,s laws, not God's--and if you cut them down--and you're just the man to do it-d you really think you could stand upright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(1991DRAFT 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 case￾by-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