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DRAFT Please do not quote or cite without written permission Courts or Tribunals?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