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. …