April 27, 2004

Federal Courts

by Nick Morgan

I've had plenty of symptoms for two years now, but having just finished a grueling Federal Courts final only to find that I really miss the class already, the diagnosis is unmistakable: Law Geek. There are far too many good reasons to study federal jurisdiction, but perhaps chiefly among them is the awesome privilege of understanding what is among the most amazing things ever written in a law journal: Henry Hart's Dialogue (yes, the Platonic kind) on congressional control of the federal courts. Most of it requires background knowledge, but it's frequently punctuated by lovely bits of legal philosophy, like this gem, which I think many De Novo readers would enjoy:

    The deepest assumptions of the legal order require that the decisions of the highest court in the land be accepted as settling the rights and wrongs of the particular matter immediately in controversy. But the judges who sit for the time being on the court have no authority to remake by fiat alone the fabric of principle by which future cases are to be decided. They are only the custodians of the law and not the owners of it. The law belongs to the people of the country, and to the hundreds of thousands of lawyers and judges who through the years have struggled, in their behalf, to make it coherent and intelligible and responsive to the people's sense of justice. And so, when justices of the Supreme Court sit down and write opinions in behalf of the Court which ignore the painful forward steps of a whole half century of adjudication, making no effort to relate what then is being done to what the Court has done before, they write without authority for the future. The appeal to principle is still open and, so long as courts of the United States sit with general jurisdiction in habeas corpus, that means an appeal to them and their successors. [66 Harvard Law Review 1362, 1396]

The unfortunate cynicism I've learned in law school gives me pause to appreciate the profound dialectical optimism of this passage, but I suppose, in the long run, I too think the law grows more just, and that change is not merely change, but growth. I wonder, nevertheless, how a judge possessed of what Professor Solum has called "the virtue of justice" would read this passage.

April 27, 2004 07:04 PM | TrackBack

I read this morning Zelman v. Simmons-Harris, decided by the Supreme Court on June 27, 2002, approving Ohio's voucher program for the City of Cleveland that included religious schools as not in violation of the Establishment Clause. The dissenting opinions well demonstrate Hart's observations as contrasted to Rehnquist's Opinion for the Court and O'Connor's and Thomas' concurring opinions.

Posted by: Shag from Brookline at April 28, 2004 10:41 AM
Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Persuasive Authority
De Novo Reporter

Powered by
Movable Type 3.21