Who's Afraid of Henry Hart?

By Wells, Michael | Constitutional Commentary, Spring 1997 | Go to article overview

Who's Afraid of Henry Hart?


Wells, Michael, Constitutional Commentary


No law book has enjoyed greater acclaim from distinguished commentators over a sustained period than has Hart & Wechsler's The Federal Courts and the Federal System.(1) Indeed, the praise seems to escalate from one edition to the next. Reviewing the first edition, published forty-three years ago, Philip Kurland called it "the definitive text on the subject of federal jurisdiction."(2) Paul Mishkin added that "the analysis is of an order difficult to match anywhere."(3) In his review of the second edition, published in 1973,(4) Henry Monaghan began by praising the first for having "deservedly achieved a reputation that is extraordinary among casebooks," and then continued. "[M]y view is that the second edition is at nearly every material point better than its predecessor."(5) When the third edition appeared in 1988,(6) Akhil Amar called the first edition "beautiful and brilliant," and thought the third "better in many respects."(7) No doubt similar encomia will greet the recently published fourth edition.(8) Certainly the research is as thorough, the analysis as trenchant, and the questions as probing as ever. Hart & Wechsler continues to set the standard that other books must aspire to meet.

Yet technical virtuosity and comparative merit are not the only tests by which a casebook may be judged. At the risk of losing my union card in the Federal Courts workshop, I propose to show that the editors, through all four editions, are fundamentally misguided in their approach to Federal Courts law. The main criteria for the selection and treatment of materials is a model of Federal Courts law elaborated by Henry Hart and Herbert Wechsler forty years ago, in the first edition, and called by one of the current editors the "Hart & Wechsler Paradigm."(9) The editors' premise is that a casebook should follow the Supreme Court's treatment of the doctrinal problems, asking questions about such matters as the adequacy of the Court's explanations, the implications of the Court's reasoning for the future, and consistency among the cases. According to the Court, and Hart & Wechsler, Federal Courts law is mainly an effort to achieve such worthy aims as striving for finality, for efficiency in litigation, and for uniformity in federal law, assigning cases on the basis of institutional competence, minimizing friction between federal and state courts, and avoiding unnecessary constitutional decisions. For the sake of convenience in exposition, I refer to this set of goals as "jurisdictional policy."

Jurisdictional policy does help to explain and justify Federal Courts law, but it does not deserve the status Hart & Wechsler accords it. Focusing their attention on jurisdictional policy, the editors fail to develop the substantive themes that animate much of Federal Courts law. The Supreme Court and, less often, Congress regularly set jurisdictional policy aside and employ Federal Courts law as a means of favoring one side or the other on the merits of the underlying litigation. For example, over the past two decades the Court has transformed federal habeas corpus by steadily chipping away at access to federal courts for state prisoners seeking to challenge their confinement on constitutional grounds.(10) While jurisdictional policies of promoting finality and respect for state procedures may help account for the Court's habeas cases, the Court's general substantive stand against broad constitutional rights of criminal procedure very likely influences these decisions as well. Though Hart & Wechsler mentions the political context of contemporary habeas law, the book contains not so much as a single note explicitly exploring the substantive theme, contenting itself with questions about the strength and implications of the jurisdictional policies advanced in the opinions.(11)

Hart & Wechsler's neglect of substantive aims produces a distorted picture of what the Supreme Court and Congress do in Federal Courts cases, and why they do it. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Who's Afraid of Henry Hart?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.