Academic journal article
By Fallon, Richard H., Jr.
Constitutional Commentary , Vol. 12, No. 1
In a recent article, Professor Michael Wells attacks what I had characterized as "the Hart and Wechsler paradigm" for analysis of Federal Courts issues.(1) To summarize crudely, Wells claims that the Hart & Wechsler paradigm, which we agree reflects the still dominant approach to Federal Courts scholarship, is descriptively impoverished and normatively inadequate, and he offers a "pragmatic" alternative. Wells's article raises important issues for those who teach and write about Federal Courts law. His essay also calls attention to questions about the notion of examining legal issues by reference to a "paradigm" that are equally pertinent to other subject matters. A brief response, addressed to some of these issues, therefore seems warranted.
In an article entitled Reflections on the Hart and Wechsler Paradigm,(2) I maintained that Henry Hart and Herbert Wechsler had established the reigning Federal Courts "paradigm"(3) and attempted to identify its central elements. In the loose sense in which I used the term--reflecting an admittedly vulgar adaptation of Thomas Kuhn's concept of a scientific "paradigm"(4)--a paradigm is a set of assumptions that defines a series of problems worth solving and a framework within which to seek answers.(5) So conceived, the Hart & Wechsler paradigm has two main elements. The first defines the field of study. As framed by Hart Wechsler, Federal Courts issues characteristically involve the appropriate allocation of power to decide legal questions authoritatively.(6) For example, which tribunals should have what authority to decide which questions, and subject to what standard of review?(7)
The second aspect of the Hart & Wechsler paradigm, I argued, consists of a set of largely methodological assumptions-associated generally with the Legal Process school--about how questions such as these should be answered. For present purposes, the most basic of these assumptions is what I termed "the antipositivist principle":(8)
"[W]e should understand the `law' bearing on allocations of
institutional responsibility as a rich, fluid, and evolving set of
norms for effective governance and dispute resolution, not as a
positivist system of fixed and determinate rules .... [L]egal
interpretation should be purposive, not rigid or mechanical,
and the variety of sources of law to which a legal interpreter
can appeal includes principles and policies as well as canonical
texts." Given the fluidity implied by the antipositivist principle, judges and lawyers need interpretive guidance. "The principle of structural interpretation" and "the principle of the rule of law" respond to this demand. The principle of structural interpretation provides that "[i]n disputes about the proper allocation of decision-making authority, the principles and policies underlying federalism and the separation of powers deserve special weight."(9) The principle of the rule of law implies that "courts have irreducible functions"(10) and "requires the availability of judicial remedies sufficient to vindicate fundamental legal principles."(11) Two further principles, "the principle of reasoned elaboration"(12) and "the neutrality principle,"(13) indicate generally that courts should strive to give reasoned justifications for their decisions.(14) As Wells correctly points out, the conjunction of the latter two principles implies an ideal of legal "coherence" or "integrity."(15) The final methodological assumption of the Hart & Wechsler paradigm, the "principle of institutional settlement," recognizes "the claim to legitimacy of thoughtful, deliberative, unbiased decisions by government officials who are reasonably empowered to make such decisions."
In my earlier article, I attributed these interpretive principles to the first edition of the Hart & Wechsler casebook, read in light of the equally famed Legal Process materials published only a few years later by Henry Hart and Albert Sacks. …