This is a book about the relationship between America's court system and the structure of federalism. For a long time now, the nagging fear of anyone daring to write about federalism is that, in Plutarch's words, we are "misusing that love of inquiry and observation which nature has implanted in us on objects unworthy of the attention." The subject has been marginalized by some of the best minds of the last two generations. It has been vilified and associated with most of the evils of modernity. We hope only that our willingness to rush in where angels fear to tread is a sign not of foolishness but of a desire to take the road less traveled.
Like most books, this one developed over several years. First as student and teacher, the two authors have long discussed the relative merits of the state and federal courts and judges. The older and more leftist of the two had written a doctoral dissertation on state trial courts. The younger, and more centrist of the two, had clerked for a federal judge. They were surprised, therefore, that despite their ideological predispositions and experiences, they agreed that there was not as much difference between the two systems as the conventional wisdom of the time assumed. Over the next several years, they would write, separately and together, on various aspects of this point of view.
This volume is an attempt to summarize many of these arguments and to give a more mature voice to the ideas first expressed over two decades ago. We hope that anyone interested in law and courts, whether they be of the academic, political, or citizen, will find something of interest in these pages. But most importantly, we hope that it will provoke further debate and discussion on what we consider to be a vital national topic, the best road to just, self-government.
In the chapters that follow, the dear reader will find little stridency, much conviction, but little passion. We hope to gently persuade not that our Constitution is the "greatest document ever struck off in the history of man," or even that it is the greatest thing since sliced bread. We simply desire, in a quiet and, we hope, intellectually honest way, to write an appreciation of the unique qualities of the American federal system of law and courts.