Document Type

Working Paper

Publication Date

2002

Abstract

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. 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 RR. Co. v. Tompkins, or 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 jurisdiction or prudential rules for the exercise of their powers. The paper, given as the Daniel Meador Lecture at Alabama Law School this fall, finds no historical or constitutional basis for these doubts, insofar as they concern interstitial law-making on subjects within Congress's legislative competence. Indeed, it argues, drawing on extensive analysis of several settings and cases, such functions have particular importance where state court common law judgments can impair the implementation of federal law. The doubts, it suggests, are more properly understood as reflecting a certain discomfort with the changing character of the judicial function in modern times. High court judges today choose the questions they will decide, in a framework that encourages them to favor the legal system's need for definition over party claims for justice as the basis for choice; and from an enormous volume of potential targets for decision that puts the discipline of common law processes in question. The discomfort is widespread, and it is perhaps more instinctual than intellectual, a realization that the ground has shifted without yet quite knowing what to do about it. In repeated arguments about precedent, and perhaps unexpected adherence to it, one can find expression of the tensions between the prior model of litigant-required judging, and the new powers of policy-directed choice. The certiorari function brings forward the law-making side of judging, and at the same time reflects a weakening of the possibilities for hierarchical control within the judiciary. Our common-law premises cannot explain either development. In groping for an understanding and accommodation, the Justices appear often enough to be behaving in the familiar, unconscious mode. In the unspoken battle between agenda-setting and judging, we should all hope judging wins.

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