Introduction: The Federalization of State Law - Symposium (original) (raw)
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State Courts and Federal Administrative Law: Problems of Federal Jurisdiction
Federal Law Review
From the time a Federal Court was first proposed, questions about its jurisdiction, and its relationship with state courts have dominated discussion. 1 While it is not proposed to review this extensive literature in detail, it is apposite to draw on some insights from an article by Sir Garfield Barwick published in 1964 at an early stage of this debate. 2 First, it was suggested that the matters in which a Federal Court should have jurisdiction be in some way special. This special element could, it was said, consist of either a distinctive and separate body of law, a desire for uniformity in the interpretation of Commonwealth law, or the character of a party involved in a matter (eg the Commonwealth or a State). 3 Secondly, and of major importance to the present consideration of the exclusive jurisdiction of Federal Courts, Barwick stated: My own preference for a new federal court rests on a view that most of these matters present characteristics sufficiently 'special' to make a Federal Court the most appropriate forum. Whenever it can, therefore, I think the Parliament should make the jurisdiction it gives any such new federal court, exclusive. 4 * BA LLB (Syd) New South Wales and Victorian Bars. Lecturer in Law, Footscray Institute of Technology 1 The initial contributions to this discussion were M H Byers and P B Toose, "The Necessity for a New Federal Court" (1963) 36 AU 308 and Sir Garfield Barwick, "The Australian Judicial System: The Proposed New Federal Superior Court" (1964) I F L Rev I. A recent discussion is also by M H Byers, "Federal and State Judicatures" (1984) 58 AU 590. 2 Barwick, supra n I. It should be noted that the article was prepared while Sir Garfield Barwick was Attorney-General, but was published after his appointment as Chief Justice. 3 Ibid 3. 4 Ibid 9.
Federal Question Jurisdiction: The Compass, the Maze and the Trap
SSRN Electronic Journal, 2013
This Article examines and evaluates the legal process method as a perspective from which to assess the law of federal courts. It then offers a modified approach to legal process that encompasses the full range of considerations that ought to inform modern judicial decision-making in this context. With that modified approach in mind, the article describes and critiques the Supreme Court's statutory arising-under jurisprudence, both as originally developed and as currently practiced. The article shows that while the Court's early "arising-under" jurisprudence was founded on durable principles and on the reasoned application of those principles, more recent decisions by the Court have strayed from that approach in service of a more mechanical jurisprudence. This approach seems to be premised more on case-management concerns than on the congressionally endorsed value of providing a federal forum for the interpretation and application of federal law. The article ends by examining the Court's decision in Gunn v. Minton. As the article explains, Gunn offered the Court an opportunity to redirect the arising-under analysis back toward a perspective that would more closely reflect the legitimate and enduring principles of federal question jurisdiction. The Court, however, missed that opportunity and instead endorsed a mechanical, four-part test as a substitute for reasoned analysis.
Federalization of State Law: Enhancing Opportunities for Three-Branch and Federal-State Cooperation
Depaul Law Review, 1995
I. One of my first projects at the Department of Justice was to conduct this Three Branch Roundtable. See infra note 90 and accompanying text (discussing the Three-Branch Roundtable conference). 2. Letter from J. Clifford Wallace, Chief Judge, United States Court of Appeals for the Ninth Circuit, to The Honorable William H. Rehnquist, The Honorable Janet Reno, The Honorable Joseph R. Biden, The Honorable Jack Brooks (Mar. 29, 1993) [hereinafter Letter]. 3. See Letter, supra note 2, at 6 (proposing a national three-branch conference to evaluate the problems facing the federal court system and to produce a long-range statement about the mission of the federal courts). 4. See infra notes 6-12 and accompanying text (discussing concerns of other scholars, judges, and lawyers about the expansion of the federal court system).
Nevada Law Journal, 2004
is also the author of one of the leading treatises on federal court jurisdiction. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION (4th ed. 2003). The weekly debate, addressing the latest developments in constitutional law, is hosted by Hugh Hewitt and broadcast nationally on over sixty radio stations via the Salem Radio Network. See http://www.hughhewitt. corn/ pages/stations.htm (last visited June 17, 2004).
Law and History Review, 2010
There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.
Federal Expansion and the Decay of State Courts
University of Chicago Law Review, 2019
At the turn of the twenty-first century, the country entered its third era of judicial federalism. That era is defined by federal judicial expansion into areas of statecourt power and federal monopolization of large and complex litigation. These changes, in turn, have coincided with the decay of state courts. Whether measured by funding, delays, or docket loads, state courts—the true workhorses of the American legal system—have declined relative to federal courts. Indeed, over the last decade, state chief justices have complained that state courts are “financially bankrupt,” “at ‘the tipping point of dysfunction,’” and “on the edge of an abyss.” This state-court decay could not come at a worse time—due to federal efforts to circumscribe access to court, there have been growing calls for a turn to state courts. But that turn cannot work without vibrant and well-funded state judiciaries. Thus, federal expansion and state-court decay represent the most fundamental developments in judic...
Federal Law in State Court: Judicial Federalism Through a Relational Lens
2011
Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's preclearance requirements. Federalism enforcement as allocation also underwrites much federal courts doctrine. We ask whether Congress has the authority to commandeer state courts, or whether states have the right to close their doors to federal claims.