Busting the Hart & Wechsler Paradigm
Wells, Michael L., Constitutional Commentary
Federal Courts law was once a vibrant area of scholarship and an essential course for intellectually ambitious students. Now its prestige has diminished so much that scholars debate its future in a recent issue of the Vanderbilt Law Review, where even one of its champions calls it (albeit in the subjunctive mood) a scholarly backwater."(1) What, if anything, went wrong, and what should Federal Courts scholars do about it? In his contribution to the Vanderbilt symposium, Richard Fallon defends the reigning model of Federal Courts law, an approach to jurisdictional issues that dates from the publication in 1953 of Henry Hart and Herbert Wechsler's casebook, The Federal Courts and the Federal System.(2) In Fallon's view, nothing went wrong, and in any event there is not much we can do about it. In brief, Fallon argues that with a few adjustments, Federal Courts scholars should continue to work within the model set out by Hart & Wechsler forty years ago, a model that rests upon "the principles and policies underlying federalism and the separation of powers,"(3) and such process values as "reasoned elaboration of principles and policies that are ultimately traceable to more democratically legitimate decisionmakers"(4) and the obligation that judges "be principled in their reasoning."(5) He suggests that although the rise of interdisciplinary studies has overshadowed the process-based methodology that characterizes most Federal Courts teaching and scholarship, the traditional approach to Federal Courts still has much to offer. In any event, Fallon suggests, there is no good alternative available for the study of the allocation issues that make up the Federal Courts field.(6)
In this article I argue that the "Hart & Wechsler paradigm" (as Fallon calls their model)(7) no longer serves us well either as an account of what the Supreme Court does in Federal Courts cases or as a guide to what the Court ought to do. In its place, I propose a new, more fruitful model for analyzing the normative issues that arise in Federal Courts cases. I call it the "pragmatic paradigm," because its central feature is the pragmatist precept that no value should be taken as foundational, be it process, federalism, or separation of powers. Rather, the force of any of these values in a given case depends on the arguments that can be mustered in their support, and those arguments will vary in strength depending on context.
I. THE HART & WECHSLER PARADIGM
Hart & Wechsler's casebook contains no explicit model of Federal Courts Law. Even so, Fallon is right to discern a paradigm in the materials, in contemporaneous writings by the book's authors, and in the scholarly tradition they spawned. Fallon notes that "the central, organizing question of Federal Courts doctrine involves allocations of authority: Who ought to have authority to give conclusive determinations of which kinds of questions?"(8) The insight linking allocation issues is that "authority to decide must at least sometimes include authority to decide wrongly ... Once [this] point is recognized, it becomes evident that constitutional federalism and the separation of powers can be illuminated by painstaking attention to the question of where ultimate responsibility for certain kinds of questions, including the power to make uncorrectable mistakes, should lie."(9)
In addressing allocation issues, Hart & Wechsler employed six methodological assumptions. These include:
(1) The principle of institutional settlement," which holds "that decisions which are the duly arrived at result of duly established procedures for making decisions of this kind ought to be accepted as binding on the whole society unless and until they are duly changed."(10)
(2) The anti-positivist principle," that allocation decisions must be understood "as a rich, fluid, and evolving set of norms for effective governance and dispute resolution, not …
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Publication information: Article title: Busting the Hart & Wechsler Paradigm. Contributors: Wells, Michael L. - Author. Journal title: Constitutional Commentary. Volume: 11. Issue: 3 Publication date: Winter 1994. Page number: 557+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 1994 Gale Group.