Comparing Federal Courts "Paradigms."

By Fallon, Richard H., Jr. | Constitutional Commentary, Spring 1995 | Go to article overview

Comparing Federal Courts "Paradigms."


Fallon, Richard H., Jr., Constitutional Commentary


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.

I. BACKGROUND

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. …

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

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.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

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

Comparing Federal Courts "Paradigms."
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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access 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

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.