Academic journal article Duke Law Journal

Jurisdiction Stripping Circa 2020: What the Dialogue (Still) Has to Teach Us

Academic journal article Duke Law Journal

Jurisdiction Stripping Circa 2020: What the Dialogue (Still) Has to Teach Us

Article excerpt


Since its publication in 1953, Henry Hart's famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply "The Dialogue," has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

          A. 1953 and Beyond
          B. The Dialogue: A Preliminary Look
I.     The Essential Role of the Supreme Court
          A. Hart and the Court's Essential Role.
          B. The Critical Responses and the Apparently Dominant
          C. Textual and Other Ambiguities
          D. The Supreme Court, Limited Government, and the Rule of
          E. Purpose and Jurisdiction-Stripping
          F. The Hatter
II.     Article III and Enforcement Courts
          A. The Possibility of Judicial Control
          B. Article III Courts and "Public Rights"
          C. Public Rights and Judicial Review
          D. Limitations on Enforcement Courts: Their Validity
             1. Civil proceedings
             2. Criminal proceedings
          E. The Enforcement Court's Law Declaration Duty
III.   Judicial Control of Administrative Deprivations of Liberty or
          A. Necessity and the Administrative State
          B. Administrative Deprivations of Liberty and Property
          C. Remedies
Concluding Reflections


It seems that we--we've been replicating what, among lawyers anyway, is a famous dialogue between Professors Wechsler and Hart about whether Congress can achieve unconstitutional objectives by preventing federal courts from adjudicating claims that those provisions are unconstitutional. (1)

--Chief Justice John Roberts

A. 1953 and Beyond

1953 was a remarkable year for federal courts scholarship. Hart and Wechsler's The Federal Courts and the Federal System--"probably the most important and influential casebook ever written"--was published. (2) That work still shapes the field of federal courts scholarship. (3) Earlier in the year, Henry Hart published his famous article The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic (universally referred to as "The Dialogue") in the Harvard Law Review, which had appeared earlier as part of the casebook. (4) My project is to examine just what The Dialogue's central legal ideas have to teach us after more than six-and-one half decades. (5)

Hart (like Wechsler) had god-like status in the middle of the last century. As a student of Felix Frankfurter, a law clerk to Justice Brandeis, and an anti-positivist (in the late 1950s debate between Lon Fuller and H.L.A. Hart), he was--and still is--the acknowledged standard bearer for the Legal Process School of statutory interpretation. (6) For decades of law school students, Chapter Four of the HART AND WECHSLER casebook, which addresses the general topic of congressional control over Article III court subject-matter jurisdiction, has been the casebook's sanctum sanctorum. The Dialogue long stood at its very center. It was reprinted in the book's second (1973) and third (1988) editions, with citations added and some footnotes annotated, modified, or eliminated. Subsequent editions have drawn upon The Dialogue extensively.

Congress, Hart believed, had wide latitude in prescribing the subject-matter jurisdiction of the Article III courts. But it was not unlimited. Hart's specific concern was with congressional misuse of its authority to "regulate rights--rights to judicial process, whatever those are, and substantive rights generally." (7) It was, Hart insisted, "monstrous illogic .... [t]o build up a mere power to regulate jurisdiction into a power to affect rights having nothing to do with jurisdiction. …

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