The supreme court's judicial passivity

Supreme Court Review

Volumn 2002, Issue , 2002, Pages 343-409

  Meltzer, Daniel J ^a  

^a NONE

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EID: 0346437739     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2002.3109721     Document Type: Review

References (335)

1. Of course, inconsistency is not limited to subconstitutional decision making. The current Supreme Court, for example, favors judicially imposed restrictions on national authority and deference to state and local lawmaking, but those general inclinations are not strongly in evidence, for example, in the majority or concurring opinions in Bush v Gore, 531 US 98 (2000). Recently, Bradley Joondeph argued that Bush v Gore is not inconsistent with the Court's federalism cases; he suggests that the Court's federalism revolution has been restricted to cases raising questions of the scope of congressional power, and that when such questions do not exist, the Court often supports national power at the expense of the states - notably in preemption and dormant Commerce Clause decisions. Bradley W. Joondeph, Bush v. Gore, Federalism, and the Distrust of Politics, 62 Ohio St L J 1781, 1803 (2001). That description seems largely accurate, but does not explain why the two sets of cases should be treated differently, or, more particularly, why the rhetoric of state autonomy, so prominent when congressional power is in question, counts for so little in other cases that pose a deeper challenge to state regulatory authority. Moreover, Bush v Gore rested not on preemption or dormant commerce grounds, but rather on the Fourteenth Amendment, and the claim that the Rehnquist Court has broadly interpreted the Fourteenth Amendment as restricting state action is somewhat overbroad to say the least. By the same token, the suggestion in the Chief Justice's concurring opinion in Bush v Gore that the Supreme Court should engage in de novo review of a state court's decision of state law is hardly a routine application of established principles. See generally Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 66-72 (Foundation, 2002 Supp).
2. See, for example, Reich v Continental Casualty Corp., 33 F3d 754, 757 (7th Cir 1994). There, Judge Posner ruled that the court of appeals should follow dictum in an earlier Supreme Court decision, stating: "The [Supreme Court's] majority opinion goes out of its way to throw cold water on the idea of an implied liability of nonfiduciaries for knowing participation in fiduciaries' misconduct. The discussion is dictum, but it is considered dictum. If we thought the Court had overlooked some point that might have altered its view, we would be less reluctant to buck the dictum. But it appears not to have. . . . Justice Holmes has been derided for claiming in 'The Path of the Law,' 10 Harv. L. Rev. 457, 461 (1897), that the law is merely a prediction of what the courts will do. The theory has many weaknesses, but also a valid core." The position on nonfiduciary liability taken in the Reich decision was rejected by a number of other circuits and eventually by the Supreme Court, when it resolved the resulting circuit conflict. See Harris Trust & Savings Bank v Saloman Smith Barney Inc., 530 US 238 (2000). But those developments merely illustrate the problems that considered dicta of this kind can generate.
3. 122 S Ct 708 (2002).
4. 29 USC § 1132(a)(3).
5. Mertens v Hewitt Associates, 508 US 248, 256-59 (1993).
6. See 122 S Ct at 712. The district court, taking the state court settlement at face value, had suggested that Great-West Life could recover, but only the $14,000 that the settlement designated as for medical expenses. See 2000 WL 145374 (9th Cir 2000) (unpublished disposition). The Supreme Court's decision did not rest on the ground that any recovery beyond the $14,000 was unauthorized by the subrogation agreement, but instead on the broader ground that that agreement could not be enforced in a suit under § 502(a)(3).
7. See 29 USC § 1144(a) (providing that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan").
8. See, for example, Pegram v Hedrich, 530 US 211 (2000); New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645 (1995).
9. 122 S Ct at 718.
10. Id at 712, quoting Mertens, 508 US at 256.
11. See 122 S Ct at 723-26 (Ginsburg dissenting); Brief for the United States as Amicus Curiae at 14-15.
12. See Restatement of Restitution § 162, comment a (1937).
13. The ripple effects of the Great-West Life decision for ERISA remain to be seen. They may, however, extend well beyond ERISA, for, according to Justice Scalia, the term "equitable relief" appears in seventy-seven provisions of the U.S. Code. 122 S Ct at 716 n 3.
14. See John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West (forthcoming 2003). For another critique of Great-West Life that links it to other restrictions on the remedial powers of the federal courts, as well as to efforts of the Judicial Conference of the United States to persuade Congress to limit the creation of new federal rights that are enforceable in the federal courts, see Judith Resnik, Constricting Federal Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind L J (forthcoming 2003).
15. See John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West (forthcoming 2003). For another critique of Great-West Life that links it to other restrictions on the remedial powers of the federal courts, as well as to efforts of the Judicial Conference of the United States to persuade Congress to limit the creation of new federal rights that are enforceable in the federal courts, see Judith Resnik, Constricting Federal Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind L J (forthcoming 2003).
16. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 NYU L Rev 921, 937 (1992).
17. Nor did the Court consider whether, in the face of the advance of more than $400,000 in medical expenses, the allocation to medical expenses of only 5 percent of the $650,000 state court settlement constituted fraud on the insurer. Equity, after all, has always been concerned with avoiding fraud and mistake. See Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West (cited in note 14).
18. 122 S Ct at 718 (quoting Mertens, 508 US 248, 261 (1993)).
19. Compare Metropolitan Life Ins. Co. v Taylor, 481 US 58 (1987) (holding that ERISA is one of only two areas in which, because of the extraordinary preemptive power of a federal statutory regime, a state court action that purports to rest on state law may, under the "complete preemption doctrine," be removed to federal court on the basis that the action is preempted under federal law).
20. That question was: "Whether federal courts have jurisdiction over actions brought by ERISA plan fiduciaries to enforce recoupment provisions in ERISA plans against plan participants or beneficiaries for medical expenses paid for injuries caused by third-party tortfeasors."
21. The Petitioner's Brief at 38-39 argued in the alternative for a federal common law remedy.
22. 122 S Ct at 712, quoting Mertens, 508 US at 254 (quoting Massachusetts Mut. Life Ins. Co. v Russell, 473 US 134, 146 (1985)).
23. 532 US 811 (2001).
24. Id at 812.
25. Id at 815.
26. Id at 820, citing American Dredging Co. v Miller, 510 US 443, 455 (1994).
27. 532 US 483 (2001).
28. 84 Stat 1242, 21 USC § 801 et seq (1988).
29. 21 USC § 882.
30. See 532 US at 487.
31. See, for example, Model Penal Code § 3.02.
32. See, for example, John T. Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 36 Houston L Rev 397 (1999).
33. 532 US at 490.
34. Id.
35. Id at 500-01, citing United States v Bailey, 444 US 394 (1980) (setting forth limitations on a necessity defense when raised by a prisoner who escapes to avoid greater harm threatened if he remained confined).
36. In an opinion concurring in the judgment, Justice Stevens suggested in addition that the defendants in this case fell outside of any necessity defense as they, unlike seriously ill patients, did not personally face the same choice of evils. 532 US at 500 n 1. One can understand that these defendants, who appeared to be campaigning for broader use of marijuana rather than responding to localized circumstances of an emergency nature, were not the most appealing parties to claim a necessity defense. But if seriously ill users indeed were entided to a defense - a point that Justice Stevens called a "difficult issue" but wished to leave open - it is far from clear that a person who assists an actor in choosing the lesser of two evils is not also entitled to the defense. Of course, a distributor of marijuana does not face the same choice faced by a seriously ill person, but that would be true of any person from whom the ailing individual obtained marijuana. Because there will ordinarily be many potential distributors, it would never be "necessary" that any one distributor choose to supply a particular distributee, since someone else might. But the net result of that approach would be to deny the defense to any distributor, in which case the ailing person might have a right to use the drug but anyone who supplied it would be subject to prosecution. Compare United States v Haney, 287 F3d 1266 (10th Cir 2002) (where a prisoner would be entitled to a duress defense to a criminal charge of attempting to escape from prison in order to avoid a threat of harm, a confederate who helped the prisoner attempt to escape but was not personally subject to the threat of harm may also raise the defense of duress); Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 190 (Foundation, 4th ed 1996) ("Hart & Wechsler") (suggesting, in discussing Griswold v Connecticut, 381 US 479 (1965), that where a prohibition on the use of contraceptives by married individuals violated their constitutional rights, a doctor may not be convicted on the theory that, in prescribing contraceptives, he was an accomplice to the crime of illegal use by married persons).
37. See, for example, Brown v United States, 256 US 335 (1921).
38. See, for example, Shannon v United States, 512 US 573 (1994) (Thomas, J) (citing numerous federal decisions recognizing a judge-made insanity defense to federal prosecutions).
39. See the Insanity Defense Reform Act of 1984, Pub L No 98-473, 98 Stat 2057, codified at 18 USC §§ 17, 4241-47. For other judge-made defenses, see, for example, Paul Robinson, 1-2 Criminal Law Defenses §§ 81 (abandonment of inchoate crimes), 141 (public authority), 177 (duress), 209 (entrapment) (West Group, 1984).
40. Thus Judge Easterbrook, hardly an apostle of federal common lawmaking or of broad statutory construction, has written (albeit in an opinion in a hypothetical case) that "[a]ll three branches of government historically have been entitled to assess claims of justification - the legislature by specifying the prohibition and allowing exceptions, the executive by declining to prosecute (or by pardon after conviction), and the judiciary by developing defenses." Frank Easterbrook, The Case of the Speluncean Explorers Revisited, 112 Harv L Rev 1913, 1913-14 (1999).
41. According to Stewart Jay, Origins of Federal Common Law: Part Two, 133 U Pa L Rev 1231, 1323 (1985), "Hudson was decided in a peculiar setting of partisan disturbance, and grew out of a fear that we can scarcely appreciate today - the belief that there was a scheme afoot to install a consolidated national government through incorporation of the British common law." See also Note, The Sound of Silence: United States v Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L J 919 (1992) (arguing that Hudson represented a change in practice influenced greatly by the Jeffersonians' political triumph in 1800 and their opposition to the Alien and Sedition laws).
42. According to Stewart Jay, Origins of Federal Common Law: Part Two, 133 U Pa L Rev 1231, 1323 (1985), "Hudson was decided in a peculiar setting of partisan disturbance, and grew out of a fear that we can scarcely appreciate today - the belief that there was a scheme afoot to install a consolidated national government through incorporation of the British common law." See also Note, The Sound of Silence: United States v Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L J 919 (1992) (arguing that Hudson represented a change in practice influenced greatly by the Jeffersonians' political triumph in 1800 and their opposition to the Alien and Sedition laws).
43. See 11 US at 33 ("The powers of the general Government are made up of concessions from the several states - whatever is not expressly given to the former, the latter expressly reserve."). Accord, John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 192 n 9 (1985).
44. Moreover, there are distinctive constitutional concerns associated with retroactive judicial expansion of criminal liability in the context of a particular prosecution that do not apply to retroactive contraction of liability resulting from recognition of a defense. See generally Jeffries, 71 Va L Rev at 190 (cited in note 41).
45. 532 US 451 (2001).
46. 378 US 347 (1964).
47. Rogers, 532 US at 460-61.
48. Id at 461.
49. See note 159. See generally Hart & Wechsler at 756-57 (cited in note 35).
50. 122 S Ct 515 (2001).
51. See Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971).
52. See, for example, Hope v Pelzer, 122 S Ct 2508, 2514 (2002) (reiterating that the question under that Clause is whether officials acted with "deliberate indifference" to an inmate's health or safety).
53. 510 US 471 (1994).
54. See Brief for the United States as Amicus Curiae Supporting Petitioner at 11-26.
55. Thus, he dissented in Carbon v Green, 446 US 14 (1980), and Davis v Passman, 442 US 228 (1979), and joined the majority in refusing to recognize a Bivens right of action in Schweiker v Chilicky, 487 US 412 (1988), Bush v Lucas, 462 US 367 (1983), Chappell v Wallace, 462 US 296 (1983), and United States v Stanley, 483 US 669 (1987).
56. 122 S Ct at 521-23.
57. See, for example, Dickerson v United States, 530 US 428, 442 (2000) (apparently approving a lower court decision upholding the availability of a Bivens right of action for a denial of due process in custodial interrogation); Behrens v Pelletier, 516 US 299 (1996) (due process claim relating to dismissal from employment); Cleavinger v Saxner, 474 US 193 (1985) (alleged violation by prison disciplinary body of rights under the First, Fourth, Fifth, Sixth, and Eighth Amendments); Harlow v Fitzgerald, 457 US 800 (1982) (claim of illegal discharge under the First Amendment). This is not to say that the Supreme Court has invariably recognized a Bivens right of action. See note 53. But the decisions refusing to do so have been based on more particular reasons for not implying a damages remedy - for example, comprehensive congressional regulation of the area, or distinctive concerns respecting the military - rather than on challenges to the premise that a Bivens remedy is presumptively available when a federal official violates constitutional rights. See generally Hart & Wechsler at 870-73 (cited in note 35).
58. A good example is the Federal Employers Liability Reform and Tort Compensation Act of 1988, PL 100-694, which provided, in damage actions against federal employees for common law torts committed within the scope of their employment, both for a broadened immunity and for recharacterizing the action as one against the United States under the Federal Tort Claims Act (FTCA). In general, the 1988 Act made the FTCA the exclusive remedy when plaintiffs seek money damages for tortious conduct of a federal employee acting with the scope of employment, 28 USC § 2679(b)(1), but the exclusivity provision expressly left open the right of plaintiffs to sue federal employees under Bivens for constitutional violations, see id § 2679(b)(2)(A). The House Report accompanying that Act explains: "Since the Supreme Court's decision in Bivens, supra, the courts have identified this type of tort [a constitutional tort] as a more serious intrusion of the rights of an individual that merits special attention. Consequently, H.R. 4612 would not affect the ability of victims of constitutional torts to seek personal redress from Federal employees who violated their Constitutional rights." HR Rep 100-700, 100th Cong, 2d Sess, 1998 USCCAN 5945, 5950. Similarly, when in 1974 Congress amendment the FTCA to embrace a broad range of intentional torts committed by law enforcement officials, a committee report accompanying a bill that was later embodied in that amendment described Bivens as holding "that the Fourth Amendment and elementary justice require that there by [sic] a right of action against the Federal agents for illegal searches conducted in bad faith or without probable cause." S Rep No 588, 93d Cong, 2d Sess, 1974 USSCAN 2789, 2790. Although the extension was designed "as a counterpart to the Bivens case and its progeny, in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved)," id at 2791, the FTCA expressly preserved Bivens remedies as a supplement to common law tort liability, rather than suggesting (as the Court did in Malesko) that the availability of a common law remedy provides a basis for refusing to recognize a Bivens remedy. See also, for example, the Senate Report on the Judicial Immunity Restoration Act, S Rep No 465, 101st Cong, 2d Sess 1990, 1990 WL 201715 at 2 ("In Bivens, 403 U.S. 388 (1971), the Supreme Court enunciated the doctrine of 'constitutional tort,' which subjects Federal officials to suits for violation of Federal constitutional rights in a manner equivalent to 42 U.S.C. 1983 actions against State officials.").
59. See David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877 (1996).
60. Id at 891.
61. 122 S Ct at 521.
62. 442 US 228 (1979).
63. Id at 523. Indeed, this is clearest in the holding in Carlson v Green, 446 US 14 (1980), which upheld a Bivens action despite the availability of recovery against the United States under the Federal Tort Claims Act, see note 56. It is true that, in Carlson, the Court suggested four ways in which the Bivens remedy might be more effective than the FTCA remedy: (a) an action against the individual wrongdoer is a more effective deterrent than an action against the government; (b) unlike the FTCA, the Bivens remedy permits punitive damages; (c) a Bivens plaintiff can opt for jury trial, unavailable under the FTCA; and (d) the FTCA applies only to conduct that would be actionable under state law if committed by a private person, whereas uniform federal rules govern the extent of Bivens liability. However, the Court failed to mention countervailing advantages of the FTCA remedy: that plaintiffs need not surmount the considerable barrier of qualified immunity, and that the United States is the ultimate deep pocket. Indeed, the Supreme Court has since found remedies to be adequate that have all of the "defects" of the FTCA that Carlson noted. See Bush v Lucas, 462 US 367 (1983) (upholding as an adequate substitute for a Bivens remedy a statutory scheme providing relief only against the government, without punitive damages or jury trial); Parratt v Taylor, 451 US 527 (1981) (upholding as an adequate state postdeprivation remedy, which provides all the process that is due, a state tort remedy similar to the FTCA in the respects noted above), overruled in part on other grounds by Daniels v Williams, 474 US 327 (1986).
64. 227 US 278 (1913). But cf Parratt, 451 US 527; Hart & Wechsler at 1151-52 (cited in note 35).
65. 365 US 167 (1961).
66. See 403 US at 398-411. See generally Hart & Wechsler at 847-77 (cited in note 35).
67. 403 US at 394; see id at 391-94.
68. See 409 F2d 718, 725 (2d Cir 1969).
69. Before the Supreme Court in Bivens, the Solicitor General's Brief for the Respondents at 32-38 elaborated the New York State precedents that would support such recovery, as well as recovery for battery and mental distress. The Brief also stated that the United States may be liable, under the Federal Tort Claims Act, for trespasses committed by federal officers.
70. 122 S Ct at 521.
71. See, for example, Alexander v Sandoval, 532 US 275 (2001). See generally Hart & Wechsler at 840-41 (cited in note 35).
72. 122 S Ct at 524.
73. See, for example, Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975); Hart & Wechsler at 876-77 (cited in note 35).
74. See, for example, Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv L Rev 1 (1975); Hart & Wechsler at 876-77 (cited in note 35).
75. 442 US 228 (1979) (recognizing an implied damages claim for an alleged violation of the Equal Protection Clause in the context of employment on a congressional staff).
76. 446 US 14 (1980) (recognizing an implied right of action under the Cruel and Unusual Punishment Clause for failure to provide medical attention to a federal inmate).
77. 122 S Ct at 524.
78. See, for example, the Senate Report on the Judicial Immunity Restoration Act, S Rep No 465, 101st Cong, 2d Sess 1990, 1990 WL 201715 at 2 ("In Bivens, 403 U.S. 388 (1971), the Supreme Court enunciated the doctrine of 'constitutional tort,' which subjects Federal officials to suits for violation of Federal constitutional rights in a manner equivalent to 42 U.S.C. 1983 actions against State officials.").
79. See id at 519 n 3; id at 523 (Scalia concurring).
80. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v Curran, 456 US 353, 378-79 (1982); Cannon v University of Chicago, 441 US 677, 698-99 (1979).
81. 532 US 275 (2001).
82. Crosby v National Foreign Trade Council, 530 US 363, 390 (2000) (Scalia concurring in the judgment, joined by Thomas) (quoting id at 388 (majority opinion)).
83. See, for example, Lorillard Tobacco Co. v Reilly, 533 US 525, 541 (2001); Cipollone v Liggett Group, Inc., 505 US 504, 517 (1992).
84. See, for example, Boggs v Boggs, 520 US 833, 841 (1997); Buckman Co. v Plaintiffs' Legal Comm., 531 US 341, 348 and n 2 (2001).
85. See generally Karen A. Jordan, The Shifting Preemption Paradigm: Conceptual and Interpretive Issues, 51 Vand L Rev 1149, 1158-65 (1998).
86. 29 USC § 1144(a).
87. California Div. of Labor Standards Enforcement v Dillingham Constr., N.A., 519 US 316, 335-36 (1997) (Scalia concurring).
88. Freightliner Corp. v Myrick, 514 US 280, 289 (1995); see Lorillard Tobacco Co., 533 US 525; Geier v American Honda Motor Co., Inc., 529 US 861, 872 (2000). For discussion of the somewhat shifting approach to this question, see, for example, Jordan, 51 Vand L Rev at 1158-65 (cited in note 82).
89. Geier, 529 US at 869; accord, Buckman Co. v Plaintiffs' Legal Comm., 531 US 341, 352 (2001). The Court's departure from textualism is no less true with respect to saving clauses. For example, when interpreting a statutory clause providing that the federal statute "does not exempt any person from any liability under the common law," the Court has "'decline[d] to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law.'" See Geier, 529 US at 868, 870 (quoting US v Locke, 529 US 89, 106 (2000)).
90. Lorillard Tobacco Co., 533 US at 541; Fidelity Federal Sav. & Loan Assn. v De la Cuesta, 458 US 141, 153 (1982).
91. Gade v National Solid Wastes Mgmt. Ass'n, 505 US 88, 98 (1992); see also, for example, Lorillard Tobacco Co., 533 US at 541; Geier, 529 US at 869-74. The Court has recognized that the categories of preemption that it conventionally recites in its opinions are not conceptually distinct. See Crosby, 530 US at 372 n 6 and sources cited.
92. Caleb Nelson has noted that the distinction between express and implied preemption is elusive, as both forms of preemption are ways of giving meaning to a statute. See Caleb Nelson, Preemption, 86 Va L Rev 225, 263 (2000). That is true, of course, but express and implied rules rest on quite different interpretive methodologies, and what is notable is that the Court and particular Justices have endorsed implied preemption principles even though elsewhere they express their aversion to the interpretive methodology that underlies them.
93. See, for example, Southland Corp. v Keating, 465 US 1 (1984).
94. See, for example, Nelson, 86 Va L Rev at 228 n 15 (cited in note 89).
95. 529 US 861 (2000).
96. The tort law involved in Geier was that of the District of Columbia rather than of a state, but that the Court treated the District as on a par with a state for these purposes.
97. See Nelson, 86 Va L Rev at 260 (cited in note 89). Peter Strauss is critical of the Geier Court's outcome and of its understanding of federal law, particularly in light of a savings clause in the federal statute. See Peter Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala L Rev 891, 917-20 (2002). For present purposes, what is important is not whether the Court was right but rather the interpretive approach that it followed.
98. See Nelson, 86 Va L Rev at 260 (cited in note 89). Peter Strauss is critical of the Geier Court's outcome and of its understanding of federal law, particularly in light of a savings clause in the federal statute. See Peter Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala L Rev 891, 917-20 (2002). For present purposes, what is important is not whether the Court was right but rather the interpretive approach that it followed.
99. See Nelson, 86 Va L Rev at 278-87 (cited in note 89).
100. Geier, 529 US at 885.
101. 530 US 363 (2000).
102. Id at 373.
103. See Hart & Wechsler at 755-56 (cited in note 35). For a discussion of the close relationship between preemption principles and federal common lawmaking, see Monaghan, 89 Harv L Rev at 12-13 & n 69 (cited in note 71).
104. See Hart & Wechsler at 755-56 (cited in note 35). For a discussion of the close relationship between preemption principles and federal common lawmaking, see Monaghan, 89 Harv L Rev at 12-13 & n 69 (cited in note 71).
105. 531 US 341 (2001).
106. The Court also reasoned that policing fraud directed at federal regulatory agencies is an inherently federal matter, so as to make any presumption against preemption inappropriate. Id at 347. But that conclusion, too, is based on a policy-based inference rather than on a textual directive.
107. See text accompanying note 17.
108. See Nelson, 86 Va L Rev at 252 (cited in note 89); Monaghan, 89 Harv L Rev at 22 n 116 (cited in note 71).
109. See Nelson, 86 Va L Rev at 252 (cited in note 89); Monaghan, 89 Harv L Rev at 22 n 116 (cited in note 71).
110. Indeed, many decisions conventionally viewed as implied preemption decisions do not differ in substance from a decision like Boyle v United Technologies Corp., 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors), which is conventionally viewed as a federal common law decision. Both preclude state law from operating in whatever domain preemption, or the federal common law defense, is thought to operate. See Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 723-29 (Foundation, 5th ed, 2003); Nelson, 86 Va L Rev at 278-79 (cited in note 89); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085, 2107-09 (2000). Jack Goldsmith has suggested that federal common lawmaking is a more significant matter than preemption, for the former "authorizes courts to go beyond mere preemption of state authority and actually 'legislate' the federal rule of decision." Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Supreme Court Review 175, 204. It may often be true that the range of judicial discretion is relatively narrower in preemption cases, as only two options exist (to preempt or not), whereas in what Goldsmith would call federal common law decisions, there may be more than two options about how to formulate a rule of decision (e.g., about the precise circumstances in which there might be a medical necessity defense, or the scope of a damages remedy for violation of a constitutional duty). That contrast, however, can be overdrawn, for in preemption cases there are often difficult questions about the scope of preemption. In any event, the more fundamental point remains: whatever the bounds of judicial discretion, in both kinds of cases the federal courts are engaged in a kind of policymaking analysis rather than in textual interpretation, and in both cases the judgments they reach may be quite debatable.
111. Indeed, many decisions conventionally viewed as implied preemption decisions do not differ in substance from a decision like Boyle v United Technologies Corp., 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors), which is conventionally viewed as a federal common law decision. Both preclude state law from operating in whatever domain preemption, or the federal common law defense, is thought to operate. See Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 723-29 (Foundation, 5th ed, 2003); Nelson, 86 Va L Rev at 278-79 (cited in note 89); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085, 2107-09 (2000). Jack Goldsmith has suggested that federal common lawmaking is a more significant matter than preemption, for the former "authorizes courts to go beyond mere preemption of state authority and actually 'legislate' the federal rule of decision." Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Supreme Court Review 175, 204. It may often be true that the range of judicial discretion is relatively narrower in preemption cases, as only two options exist (to preempt or not), whereas in what Goldsmith would call federal common law decisions, there may be more than two options about how to formulate a rule of decision (e.g., about the precise circumstances in which there might be a medical necessity defense, or the scope of a damages remedy for violation of a constitutional duty). That contrast, however, can be overdrawn, for in preemption cases there are often difficult questions about the scope of preemption. In any event, the more fundamental point remains: whatever the bounds of judicial discretion, in both kinds of cases the federal courts are engaged in a kind of policymaking analysis rather than in textual interpretation, and in both cases the judgments they reach may be quite debatable.
112. Indeed, many decisions conventionally viewed as implied preemption decisions do not differ in substance from a decision like Boyle v United Technologies Corp., 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors), which is conventionally viewed as a federal common law decision. Both preclude state law from operating in whatever domain preemption, or the federal common law defense, is thought to operate. See Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 723-29 (Foundation, 5th ed, 2003); Nelson, 86 Va L Rev at 278-79 (cited in note 89); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085, 2107-09 (2000). Jack Goldsmith has suggested that federal common lawmaking is a more significant matter than preemption, for the former "authorizes courts to go beyond mere preemption of state authority and actually 'legislate' the federal rule of decision." Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Supreme Court Review 175, 204. It may often be true that the range of judicial discretion is relatively narrower in preemption cases, as only two options exist (to preempt or not), whereas in what Goldsmith would call federal common law decisions, there may be more than two options about how to formulate a rule of decision (e.g., about the precise circumstances in which there might be a medical necessity defense, or the scope of a damages remedy for violation of a constitutional duty). That contrast, however, can be overdrawn, for in preemption cases there are often difficult questions about the scope of preemption. In any event, the more fundamental point remains: whatever the bounds of judicial discretion, in both kinds of cases the federal courts are engaged in a kind of policymaking analysis rather than in textual interpretation, and in both cases the judgments they reach may be quite debatable.
113. Indeed, many decisions conventionally viewed as implied preemption decisions do not differ in substance from a decision like Boyle v United Technologies Corp., 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors), which is conventionally viewed as a federal common law decision. Both preclude state law from operating in whatever domain preemption, or the federal common law defense, is thought to operate. See Richard H. Fallon, Jr., Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 723-29 (Foundation, 5th ed, 2003); Nelson, 86 Va L Rev at 278-79 (cited in note 89); Viet D. Dinh, Reassessing the Law of Preemption, 88 Georgetown L J 2085, 2107-09 (2000). Jack Goldsmith has suggested that federal common lawmaking is a more significant matter than preemption, for the former "authorizes courts to go beyond mere preemption of state authority and actually 'legislate' the federal rule of decision." Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Supreme Court Review 175, 204. It may often be true that the range of judicial discretion is relatively narrower in preemption cases, as only two options exist (to preempt or not), whereas in what Goldsmith would call federal common law decisions, there may be more than two options about how to formulate a rule of decision (e.g., about the precise circumstances in which there might be a medical necessity defense, or the scope of a damages remedy for violation of a constitutional duty). That contrast, however, can be overdrawn, for in preemption cases there are often difficult questions about the scope of preemption. In any event, the more fundamental point remains: whatever the bounds of judicial discretion, in both kinds of cases the federal courts are engaged in a kind of policymaking analysis rather than in textual interpretation, and in both cases the judgments they reach may be quite debatable.
114. See cases cited in notes 108-09. See also Verizon Maryland Inc. v Pub. Serv. Comm'n of Maryland, 122 S Ct 1753 (2002) (upholding jurisdiction of federal court to entertain telecommunication carrier's claim that the order of a state utility commission requiring reciprocal compensation for telephone calls to Internet Service Providers violates federal law, without reaching the merits of that claim).
115. Gregory E. Maggs, Reducing the Costs of Statutory Ambiguity: Alternative Approaches and the Federal Courts Study Committee, 29 Harv J Leg 123, 150 (1992).
116. Id.
117. See Lorillard Tobacco Co., 533 US 525; Egelhoff v Egelhoff, 532 US 141 (2001); Norfolk Southern Ry. Co. v Shanklin, 529 US 344 (2000); Rush Prudential HMO, Inc. v Moran, 122 S Ct 2151 (2002). See also Pegram v Herdrich, 530 US 211, 236-37 (2000) (referring only incidentally to ERISA's preemption clause in holding that mixed eligibility decisions by HMO physicians are not fiduciary decisions under ERISA, and, accordingly, that ERISA does not preempt state law malpractice and fraud claims about such physicians).
118. See, for example, Buckman Co. v Plaintiff's Legal Committee, 531 US 341, 352 (2001); Crosby, 530 US 363; Geier, 529 US 861; Locke, 529 US 89. See also Raygor v Regents of the University of Minnesota, 534 US 533 (2002) (interpreting tolling provision of federal supplemental jurisdiction statute as inapplicable to claims against unconsenting states that are dismissed under the Eleventh Amendment, 28 USC 1367, and thus holding that federal law does not preempt application of state statute of limitations); Circuit City Stores, Inc. v Adams, 532 US 105 (2001) (interpreting the Federal Arbitration Act as applicable to employment contracts other than for transportation workers, and thus as preempting state law insofar as it calls for judicial determination of state law employment discrimination claim); City of Columbus v Ours Garage and Wrecker Serv., 122 S Ct 2226 (2002) (holding that a savings clause in federal statute that exempts from a statutory preemption clause specified regulations promulgated by a state also exempts such regulations when promulgated by a locality under authority delegated by the state).
119. Dillingham Constr., N.A., 519 US at 335-36.
120. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
121. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
122. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
123. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
124. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
125. This contrast has been much noted. See, for example, Nelson, 86 Va L Rev at 229 (cited in note 89); Richard Fallon, The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U Chi L Rev 429, 432 (2001); Frank B. Cross, Realism About Federalism, 74 NYU L Rev 1304, 1310 (1999); Dinh, 88 Georgetown L J at 2087 (cited in note 104); David B. Spence and Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 Cal L Rev 1125, 1128-30 (1999); Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L J 431, 464 (2002).
126. See, for example, Board of Trustees of University of Alabama v Garrett, 531 US 356 (2001); United States v Morrison, 529 US 598 (2000); College Sav. Bank v Florida Prepaid Postsecondary Educ. Expense Bd., 527 US 666 (1999); City of Boerne v Flores, 521 US 507 (1997); United States v Lopez, 514 US 549 (1995).
127. See, for example, Printz v United States, 521 US 898, 935 (1997); New York v United States, 505 US 144 (1992).
128. See, for example, Alden v Maine, 527 US 706 (1999); Seminole Tribe of Florida v Florida, 517 US 44 (1996); see also Garrett, 531 US 356, and Florida Prepaid, 527 US 666.
129. See, for example, Massey, 53 Hastings L J at 464 (cited in note 111); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 Notre Dame L Rev 1011, 1050-51 (2000); John C. Yoo, Sounds of Sovereignty: Defining Federalism in the 1990s, 32 Ind L Rev 27 (1998).
130. See, for example, Massey, 53 Hastings L J at 464 (cited in note 111); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 Notre Dame L Rev 1011, 1050-51 (2000); John C. Yoo, Sounds of Sovereignty: Defining Federalism in the 1990s, 32 Ind L Rev 27 (1998).
131. See, for example, Massey, 53 Hastings L J at 464 (cited in note 111); Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 Notre Dame L Rev 1011, 1050-51 (2000); John C. Yoo, Sounds of Sovereignty: Defining Federalism in the 1990s, 32 Ind L Rev 27 (1998).
132. Fallon, 69 U Chi L Rev at 462 (cited in note 111). See also Joondeph, 62 Ohio St L J at 1795 (cited in note 1) (reporting that since Justice Thomas was confirmed, of twenty preemption cases where the lower courts had divided, the Supreme Court found preemption ,in twelve and partial preemption in two others).
133. Fallon, 69 U Chi L Rev at 462 (cited in note 111). See also Joondeph, 62 Ohio St L J at 1795 (cited in note 1) (reporting that since Justice Thomas was confirmed, of twenty preemption cases where the lower courts had divided, the Supreme Court found preemption ,in twelve and partial preemption in two others).
134. The following table shows the votes of the various Justices in preemption decisions in the 1999, 2000, and 2001 Terms of the Court. The Justices are identified by first and last initial, in order of seniority. "Y" is a vote to preempt, "N" a vote not to preempt. Name of Decision WR JS SO AS AK DS CT RG SB City of Columbus v Ours Garage and Wrecker Service, Inc., 122 S Ct 2226 (2002) .................................... N N Y Y N N N N N Rush Prudential HMO, Inc. v Moran, 122 S Ct 2151 (2002) .................... Y N N Y Y N Y N N Raygor v Regents of Univ. of Minnesota, 534 US 533 (2002) ................ Y N Y Y Y N Y Y N Lorillard Tobacco Co. v Reilly, 533 US 525 (2001) ...................................... Y N Y Y Y N Y N N Egelhoff v Egelhoff, 532 US 141 (2001) .............................................. Y N Y Y Y Y Y Y N Circuit City Stores, Inc. v Adams, 532 US 105 (2001) ................................ Y N Y Y Y N Y N N Buckman Co. v Plaintiffs' Legal Committee, 531 US 341 (2001) ............ Y Y Y Y Y Y Y Y Crosby v National Foreign Trade Council, 530 US 363 (2000) .................. Y Y Y Y Y Y Y Y Y Pegram v Herdrich, 530 US 211 (2000) .............................................. N N N N N N N N N Geier v American Honda Motor Co., Inc., 529 US 861 (2002) .................. Y N Y Y Y N N N Y Norfolk Southern Ry. Co. v Shanklin, 529 US 344 (2000) ........................ Y N Y Y Y Y Y N Y United States v Locke, 529 US 89 (2000) .............................................. Y Y Y Y Y Y Y Y Y Total votes for preemption (out of 12 decisions) .......................... 10 3 10 11 10 5 9 5 5
135. In only one of them (Garris) did any of the four "liberal" Justices (Justice Stevens) join the majority opinion without qualification; otherwise, the four liberals either dissented or concurred in the judgment or in part. (Justice Breyer did not participate in the Oakland Cannabis decision.)
136. See, for example, Boyle, 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors).
137. One might seek to test this kind of crude explanation against the background of related developments in administrative law. For example, Jerry Mashaw has suggested that the Chevron doctrine, see Chevron USA, Inc. v NRDC, Inc., 467 US 837, 865-66 (1984), is at odds with the view that plain meaning methodology (particularly with respect to the refusal to recognize implied rights of action) serves to undermine liberal statutes. For Chevron, he suggests, "supports the broad policy discretion of the implementors of the positive or welfare state." See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm & Mary L Rev 827, 834 (1991). Of course, as Mashaw proceeds to elaborate, matters are more complex than that: one important dimension is the distribution of views among regulators, on the one hand, and lower court judges on the other. The political valence of Chevron may look different in an era of conservative regulators and liberal judges (which may have been the situation in 1984) than one featuring liberal regulators and a more conservative judiciary (which may have been the situation ten years later). See id at 834-35. The Court appears to some to have been narrowing the reach of Chevron in recent years, either by overturning agency interpretations of statutes that did not seem clearly to conflict with the statutory text, see, for example, FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000); MCI v AT&T, 512 US 218 (1994), or by holding that Chevron deference does not apply to certain kinds of informal agency decisions, see United States v Mead Corp., 533 US 218 (2001). An observer who believes strongly in the explanatory power of result-orientation might explain that development as permitting greater scrutiny, by a judiciary heavily influenced by twelve years of Republican appointments, of liberal regulatory initiatives undertaken during the Clinton administration. For conflicting views of whether judges on the District of Columbia Circuit use Chevron deference selectively to further ideological goals, see Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717 (1997); Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2168-72 (1998); see also Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84 Va L Rev 1335 (1998) (contesting "political" accounts of judging on the D.C. Circuit); Note, Disagreement in D.C.: The Relationship Between the Supreme Court and the D. C. Circuit and Its Implications for a National Court of Appeals, 59 NYU L Rev 1048, 1066 n 95 (1984).
138. One might seek to test this kind of crude explanation against the background of related developments in administrative law. For example, Jerry Mashaw has suggested that the Chevron doctrine, see Chevron USA, Inc. v NRDC, Inc., 467 US 837, 865-66 (1984), is at odds with the view that plain meaning methodology (particularly with respect to the refusal to recognize implied rights of action) serves to undermine liberal statutes. For Chevron, he suggests, "supports the broad policy discretion of the implementors of the positive or welfare state." See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm & Mary L Rev 827, 834 (1991). Of course, as Mashaw proceeds to elaborate, matters are more complex than that: one important dimension is the distribution of views among regulators, on the one hand, and lower court judges on the other. The political valence of Chevron may look different in an era of conservative regulators and liberal judges (which may have been the situation in 1984) than one featuring liberal regulators and a more conservative judiciary (which may have been the situation ten years later). See id at 834-35. The Court appears to some to have been narrowing the reach of Chevron in recent years, either by overturning agency interpretations of statutes that did not seem clearly to conflict with the statutory text, see, for example, FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000); MCI v AT&T, 512 US 218 (1994), or by holding that Chevron deference does not apply to certain kinds of informal agency decisions, see United States v Mead Corp., 533 US 218 (2001). An observer who believes strongly in the explanatory power of result- orientation might explain that development as permitting greater scrutiny, by a judiciary heavily influenced by twelve years of Republican appointments, of liberal regulatory initiatives undertaken during the Clinton administration. For conflicting views of whether judges on the District of Columbia Circuit use Chevron deference selectively to further ideological goals, see Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717 (1997); Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2168-72 (1998); see also Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84 Va L Rev 1335 (1998) (contesting "political" accounts of judging on the D.C. Circuit); Note, Disagreement in D.C.: The Relationship Between the Supreme Court and the D. C. Circuit and Its Implications for a National Court of Appeals, 59 NYU L Rev 1048, 1066 n 95 (1984).
139. One might seek to test this kind of crude explanation against the background of related developments in administrative law. For example, Jerry Mashaw has suggested that the Chevron doctrine, see Chevron USA, Inc. v NRDC, Inc., 467 US 837, 865-66 (1984), is at odds with the view that plain meaning methodology (particularly with respect to the refusal to recognize implied rights of action) serves to undermine liberal statutes. For Chevron, he suggests, "supports the broad policy discretion of the implementors of the positive or welfare state." See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm & Mary L Rev 827, 834 (1991). Of course, as Mashaw proceeds to elaborate, matters are more complex than that: one important dimension is the distribution of views among regulators, on the one hand, and lower court judges on the other. The political valence of Chevron may look different in an era of conservative regulators and liberal judges (which may have been the situation in 1984) than one featuring liberal regulators and a more conservative judiciary (which may have been the situation ten years later). See id at 834-35. The Court appears to some to have been narrowing the reach of Chevron in recent years, either by overturning agency interpretations of statutes that did not seem clearly to conflict with the statutory text, see, for example, FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000); MCI v AT&T, 512 US 218 (1994), or by holding that Chevron deference does not apply to certain kinds of informal agency decisions, see United States v Mead Corp., 533 US 218 (2001). An observer who believes strongly in the explanatory power of result- orientation might explain that development as permitting greater scrutiny, by a judiciary heavily influenced by twelve years of Republican appointments, of liberal regulatory initiatives undertaken during the Clinton administration. For conflicting views of whether judges on the District of Columbia Circuit use Chevron deference selectively to further ideological goals, see Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717 (1997); Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2168-72 (1998); see also Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84 Va L Rev 1335 (1998) (contesting "political" accounts of judging on the D.C. Circuit); Note, Disagreement in D.C.: The Relationship Between the Supreme Court and the D. C. Circuit and Its Implications for a National Court of Appeals, 59 NYU L Rev 1048, 1066 n 95 (1984).
140. One might seek to test this kind of crude explanation against the background of related developments in administrative law. For example, Jerry Mashaw has suggested that the Chevron doctrine, see Chevron USA, Inc. v NRDC, Inc., 467 US 837, 865-66 (1984), is at odds with the view that plain meaning methodology (particularly with respect to the refusal to recognize implied rights of action) serves to undermine liberal statutes. For Chevron, he suggests, "supports the broad policy discretion of the implementors of the positive or welfare state." See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm & Mary L Rev 827, 834 (1991). Of course, as Mashaw proceeds to elaborate, matters are more complex than that: one important dimension is the distribution of views among regulators, on the one hand, and lower court judges on the other. The political valence of Chevron may look different in an era of conservative regulators and liberal judges (which may have been the situation in 1984) than one featuring liberal regulators and a more conservative judiciary (which may have been the situation ten years later). See id at 834-35. The Court appears to some to have been narrowing the reach of Chevron in recent years, either by overturning agency interpretations of statutes that did not seem clearly to conflict with the statutory text, see, for example, FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000); MCI v AT&T, 512 US 218 (1994), or by holding that Chevron deference does not apply to certain kinds of informal agency decisions, see United States v Mead Corp., 533 US 218 (2001). An observer who believes strongly in the explanatory power of result- orientation might explain that development as permitting greater scrutiny, by a judiciary heavily influenced by twelve years of Republican appointments, of liberal regulatory initiatives undertaken during the Clinton administration. For conflicting views of whether judges on the District of Columbia Circuit use Chevron deference selectively to further ideological goals, see Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717 (1997); Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155, 2168-72 (1998); see also Harry T. Edwards, Collegiality and Decisionmaking on the D.C. Circuit, 84 Va L Rev 1335 (1998) (contesting "political" accounts of judging on the D.C. Circuit); Note, Disagreement in D.C.: The Relationship Between the Supreme Court and the D. C. Circuit and Its Implications for a National Court of Appeals, 59 NYU L Rev 1048, 1066 n 95 (1984).
141. One might seek to test this kind of crude explanation against the background of related developments in administrative law. For example, Jerry Mashaw has suggested that the Chevron doctrine, see Chevron USA, Inc. v NRDC, Inc., 467 US 837, 865-66 (1984), is at odds with the view that plain meaning methodology (particularly with respect to the refusal to recognize implied rights of action) serves to undermine liberal statutes. For Chevron, he suggests, "supports the broad policy discretion of the implementors of the positive or welfare state." See Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 Wm & Mary L Rev 827, 834 (1991). Of course, as Mashaw proceeds to elaborate, matters are more complex than that: one important dimension is the distribution of views among regulators, on the one hand, and lower court judges on the other. The political valence of Chevron may look different in an era of conservative regulators and liberal judges (which may have been the situation in 1984) than
142. Ruth Colker and Kevin M. Scott, Dissing States? Invalidation of State Action During the Rehnquist Era, 88 Va L Rev 1301, 1343-45 (2002).
143. Id at 1342.
144. See Fallon, 69 U Chi L Rev at 434 (cited in note 111); see also Frank B. Cross and Emerson Tiller, The Three Faces of Federalism: An Empirical Assessment of Supreme Court Federalism Jurisprudence, 73 S Cal L Rev 741, 760-62 (2000) (finding that conservative and liberal Justices were more likely to use federalism to support conservative and liberal plaintiffs, respectively, and more likely to use it to defeat liberal and conservative plaintiffs, respectively).
145. See Fallon, 69 U Chi L Rev at 434 (cited in note 111); see also Frank B. Cross and Emerson Tiller, The Three Faces of Federalism: An Empirical Assessment of Supreme Court Federalism Jurisprudence, 73 S Cal L Rev 741, 760-62 (2000) (finding that conservative and liberal Justices were more likely to use federalism to support conservative and liberal plaintiffs, respectively, and more likely to use it to defeat liberal and conservative plaintiffs, respectively).
146. See Hart & Wechsler at 907-13 (cited in note 35).
147. See, for example, Cannon v University of Chicago, 441 US 677, 730-31 (1979) (Powell dissenting); Mashaw, 32 Wm & Mary L Rev at 842-43 (cited in note 120).
148. The leading precedent, because the most explicit, is Shaw v Delta Air Lines, Inc., 463 US 85 (1983), but it is hardly the first. See, for example, Ray v Atlantic Richfield Co., 435 US 151 (1978); Hines v Davidowitz, 312 US 52 (1941).
149. 122 S Ct 1753, 1758 (2002).
150. Id at 1758 (quoting Shaw v Delta Air Lines, Inc., 463 US 85, 96 n 14 (1983)). Although the majority treated the case as one, like Shaw, involving a claim that state law was preempted, in fact the claim was (in the words of Justice Souter's concurring opinion) that "the Maryland Public Service Commission has wrongly decided a question of federal law under a decisional power conferred by" a federal statute. 122 S Ct at 1763 (Souter concurring).
151. To be sure, the Supreme Court ruled in 1989 that many if not most suits seeking injunctions against state regulation alleged to be preempted could be brought under 42 USC § 1983 an express federal right of action. See Golden State Transit Corp. v City of Los Angeles 493 US 103 (1989). Hence, from today's vantage point, one might claim that it was Congress, not the courts, that opened the doors of the federal courthouse to claims of preemption. But long before the Golden State decision, the Court had upheld implied rights of action by plaintiffs seeking to enjoin state or local regulation as preempted, and indeed has continued to recognize this line of authority in upholding jurisdiction. See note 126 and accompanying text. And the Verizon decision, though it came thirteen years after the Golden State decision, did not even mention § 1983.
152. Hart & Wechsler at 912 (cited in note 35).
153. Of course the potential pattern of federal common law rules is more complicated than claims and defenses. For example, federal common law might negate a state law defense to a federal statutory claim, which would both help plaintiffs and not create federal district court jurisdiction that did not already exist. See, for example, Dice v Akron, Canton & Youngstown R.R. Co., 342 US 359 (1952) (disallowing, as a matter of federal common law, a state law defense - that the plaintiff, in signing a fraudulently obtained release, had relinquished his rights - to a federal claim).
154. See, for example, American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts, proposed § 1312, at 187-207 (1968) (proposing that removal be permitted for federal defenses (other than lack of personal jurisdiction or failure to comply with the constitutional or statutory requirements of full faith and credit) that would be "dispositive of the action," id at 197); Donald L. Doernberg, There's No Reason for It; It's Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 Hastings L J 597 (1987).
155. 487 US 500 (1988) (recognizing a federal common law defense to state tort liability for federal military contractors).
156. See Hart & Wechsler at 878-80 (cited in note 35).
157. Compare Boyle, 487 US at 517 n 2 (Brennan dissenting).
158. See, for example, Jordan, 51 Vand L Rev at 1201-28 (cited in note 82).
159. See Locke, 529 US 89; Buckman Co., 531 US 341; Crosby, 530 US 363; Pegram v Herdrich, 530 US 211 (2000).
160. See, for example, Geier, 529 US 861 (where Justice Stevens's dissent from the finding of preemption was joined by Justices Souter, Thomas, and Ginsburg); City of Columbus, 122 S Ct 2226 (where only Justices O'Connor and Scalia voted to preempt); Raygor, 534 US 533 (where Justice Ginsburg joined the "conservatives" in voting to preempt). Accord, Strauss, 53 Ala L Rev at 907 (cited in note 94).
161. See, for example, Moran, 122 S Ct 2151 (5-4).
162. That fact may also help to explain why proposals in Congress generally to restrict the judicial role in finding federal preemption have not been enacted. See, for example, S 1214, 106th Cong (1999), which would have provided that no statute enacted thereafter should be construed to have any preemptive effect unless (i) the statute expressly states otherwise, or (ii) there is a "direct conflict" between the statute and the preempted measure "so that the two cannot be reconciled or consistently stand together."
163. For example, the Model Penal Code's provision on necessity (section 3.02), resting on starkly consequentialist premises, provides that: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. It has never been clear to me why this provision would not by its terms privilege the conduct in a famous example given by Judith Thomson, that of a surgeon who kills an innocent person in order to harvest his organs, thereby saving the lives of five persons in need of organ transplants and who otherwise would perish. See Judith Jarvis Thomson, Rights, Restitution, and Risk 94-116 (Harvard, 1986). But, as Eric Rakowski notes, "nobody, to my knowledge, would condone trading one life for five" in this situation. Eric Rakowski, Taking and Saving Lives, 93 Colum L Rev 1063, 1064 (1993).
164. For example, the Model Penal Code's provision on necessity (section 3.02), resting on starkly consequentialist premises, provides that: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. It has never been clear to me why this provision would not by its terms privilege the conduct in a famous example given by Judith Thomson, that of a surgeon who kills an innocent person in order to harvest his organs, thereby saving the lives of five persons in need of organ transplants and who otherwise would perish. See Judith Jarvis Thomson, Rights, Restitution, and Risk 94-116 (Harvard, 1986). But, as Eric Rakowski notes, "nobody, to my knowledge, would condone trading one life for five" in this situation. Eric Rakowski, Taking and Saving Lives, 93 Colum L Rev 1063, 1064 (1993).
165. See Robert Katzmann, Courts and Congress 48-49 (Brookings Institution, 1997).
166. See Maggs, 29 Harv J Leg at 126-30 (cited in note 106).
167. See text accompanying note 99.
168. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 12 (Princeton, 1997).
169. See, for example, note 104 (discussing Boyle v United Technologies Corp., 487 US 500 (1988), and text accompanying note 156 (discussing Semtek International, Inc. v Lockheed Martin Corp., 531 US 497 (2001)) - both majority opinions authored by Justice Scalia.
170. See Report of the Federal Courts Study Committee 93-94 (1990).
171. 28 USC § 1658. Indeed, the Congress might have gone further still. Section 1658 does not address the question of what statute of limitation should govern civil actions brought under the manifold federal statutes on the books prior to December 1, 1990 (the date on which the general limitations period was enacted) that do not themselves specify any limitations period. Thus, as to those statutes, courts still must wrestle with the question whether to select a limitations period from federal law, see, for example, Agency Holding Corp. v Malley-Duff & Associates, Inc., 483 US 143 (1987), or to borrow (as is the norm) one from state law, see, for example, Johnson v Railway Express Agency, Inc., 421 US 454 (1975). If the latter option is selected, courts must decide which state limitations period to select - or, as Judge Posner put it, "which round peg to stuff in a square hole." Short v Belleville Shoe Mfg. Co., 908 F2d 1385, 1393 (7th Cir 1990) (concurring opinion). It is also uncertain whether § 1658 applies to an amendment to an existing statute that creates a new federal cause of action (or expands an existing one) but contains no specific limitations period. For a recent case outlining three different approaches that the courts of appeals have taken with regard to this question, see Harris v Allstate Ins. Co., 300 F3d 1183 (10th Cir 2002). The uncertainties that persist make one wonder whether Congress might not have been wiser to provide in § 1658 that the four-year default limitations period would also apply to all causes of action arising after the effective date of the statute - even those as to which settled precedent had established a different limitations period.
172. See generally Hart & Wechsler at 820-26 (cited in note 35).
173. Another example, frequently given, is the culpability states associated with the elements of various federal criminal offenses. See, for example, Report of the Federal Courts Study Committee 91 (1990); Maggs, 29 Harv J Leg at 144 (cited in note 106).
174. Another example, frequently given, is the culpability states associated with the elements of various federal criminal offenses. See, for example, Report of the Federal Courts Study Committee 91 (1990); Maggs, 29 Harv J Leg at 144 (cited in note 106).
175. See, for example, Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Georgetown L J 281, 281 (1989); Peter L. Strauss, The Common Law and Statutes, 70 U Colo L Rev 225 (1999); Mashaw, 32 Wm & Mary L Rev at 839 (cited in note 120).
176. See, for example, Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Georgetown L J 281, 281 (1989); Peter L. Strauss, The Common Law and Statutes, 70 U Colo L Rev 225 (1999); Mashaw, 32 Wm & Mary L Rev at 839 (cited in note 120).
177. See, for example, Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Georgetown L J 281, 281 (1989); Peter L. Strauss, The Common Law and Statutes, 70 U Colo L Rev 225 (1999); Mashaw, 32 Wm & Mary L Rev at 839 (cited in note 120).
178. For such a suggestion, see Louise Weinberg, Federal Common Law, 83 Nw U L Rev 805 (1989).
179. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
180. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
181. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
182. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
183. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
184. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
185. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
186. See, for example, Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex L Rev 1321, 1342-46 (2001). Whether the "political safeguards of federalism" are today less robust or different in character than they were in the past, and the extent to which they argue against judicial enforcement of constitutional limitations on national authority, are plainly important but distinct questions. For varying analyses, see, for example, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum L Rev 543 (1954); Jesse H. Choper, Judicial Review and the National Political Process (Chicago, 1980); David L. Shapiro, Federalism: A Dialogue (Northwestern, 1995); Lynn A. Baker, Putting the Safeguards Back Into the Political Safeguards of Federalism, 46 Vill L Rev 951 (2001); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum L Rev 847 (1979); Larry D. Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum L Rev 215 (2000).
187. Compare, for example, Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 Harv L Rev 1682 (1974), with Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U Pa L Rev 797 (1957). More recently, the point has been voiced in a stronger form by commentators who seek to curtail the role of judicial lawmaking. See, for example, Scalia, A Matter of Interpretation (cited in note 145); Clark, 79 Tex L Rev (cited in note 153).
188. Compare, for example, Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 Harv L Rev 1682 (1974), with Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U Pa L Rev 797 (1957). More recently, the point has been voiced in a stronger form by commentators who seek to curtail the role of judicial lawmaking. See, for example, Scalia, A Matter of Interpretation (cited in note 145); Clark, 79 Tex L Rev (cited in note 153).
189. Compare, for example, Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 Harv L Rev 1682 (1974), with Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U Pa L Rev 797 (1957). More recently, the point has been voiced in a stronger form by commentators who seek to curtail the role of judicial lawmaking. See, for example, Scalia, A Matter of Interpretation (cited in note 145); Clark, 79 Tex L Rev (cited in note 153).
190. Compare, for example, Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 Harv L Rev 1682 (1974), with Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U Pa L Rev 797 (1957). More recently, the point has been voiced in a stronger form by commentators who seek to curtail the role of judicial lawmaking. See, for example, Scalia, A Matter of Interpretation (cited in note 145); Clark, 79 Tex L Rev (cited in note 153).
191. See Clark, 79 Tex L Rev at 1336 (cited in note 153).
192. See Semtek International, Inc. v Lockheed Martin Corp., 531 US 497 (2001).
193. Accord, Cass R. Sunstein, Must Formalism Be Defended Empirically, 66 U Chi L Rev 636, 662-66 (1999); David A. Strauss, Why Plain Meaning? 72 Notre Dame L Rev 1565, 1573 (1997).
194. Accord, Cass R. Sunstein, Must Formalism Be Defended Empirically, 66 U Chi L Rev 636, 662-66 (1999); David A. Strauss, Why Plain Meaning? 72 Notre Dame L Rev 1565, 1573 (1997).
195. See generally Gordon S. Wood, The Creation of the American Republic 1776-1787 at 202-55, 446-53, 552-53 (North Carolina, 1969).
196. Accord, Strauss, 53 Ala L Rev at 892 (cited in note 94) (asking rhetorically whether the drafters of Article III "imagined something other than a court, as that term would then have been conventionally understood, something different in kind from the black-robed members of state judiciaries?"). Put differently, the case for textual and passive statutory interpretation and against common lawmaking, insofar as that case is based on the fact that legislatures are politically accountable and judges are not, applies not only to federal but also to state judges. Although federal separation of powers notions do not bind the states, see Crowell v Benson, 285 US 22, 57 (1932); Dreyer v Illinois, 187 US 71, 83-84 (1902), it remains true in broad terms that states share a commitment to conceptions of separation of powers that is very similar to federal conceptions. Even if one views elected state judges as just as representative as elected legislators and governors (which seems to me a considerable overstatement), judicial lawmaking in the states does not have to overcome the obstacles to legislation created by bicameralism, the scarcity of legislative time (which in states with part-time legislative sessions is scarce indeed), and the need to secure the Executive's assent or a legislative super- majority. Yet in state legal systems, common lawmaking has been thought to be indispensable rather than in derogation of the constitutional structure of the legislative process. See Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L Rev 263, 269-73 (1992).
197. Accord, Strauss, 53 Ala L Rev at 892 (cited in note 94) (asking rhetorically whether the drafters of Article III "imagined something other than a court, as that term would then have been conventionally understood, something different in kind from the black-robed members of state judiciaries?"). Put differently, the case for textual and passive statutory interpretation and against common lawmaking, insofar as that case is based on the fact that legislatures are politically accountable and judges are not, applies not only to federal but also to state judges. Although federal separation of powers notions do not bind the states, see Crowell v Benson, 285 US 22, 57 (1932); Dreyer v Illinois, 187 US 71, 83-84 (1902), it remains true in broad terms that states share a commitment to conceptions of separation of powers that is very similar to federal conceptions. Even if one views elected state judges as just as representative as elected legislators and governors (which seems to me a considerable overstatement), judicial lawmaking in the states does not have to overcome the obstacles to legislation created by bicameralism, the scarcity of legislative time (which in states with part-time legislative sessions is scarce indeed), and the need to secure the Executive's assent or a legislative super-majority. Yet in state legal systems, common lawmaking has been thought to be indispensable rather than in derogation of the constitutional structure of the legislative process. See Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L Rev 263, 269-73 (1992).
198. Among the differences between them are these: (1) some state courts operate under reception statutes that can be viewed as delegations of lawmaking authority (although that understanding of the statutes may be quite anachronistic, see Kramer, The Lawmaking Power of the Federal Courts at 280); (2) while states generally follow separation of powers principles similar to those of the federal Constitution, there are differences as well (e.g., Nebraska has a unicameral legislature); and (3) federal common lawmaking, like federal lawmaking generally, takes place against a background of state law, see Hart & Wechsler at 521-22 (cited in note 35), whereas sharp limits on state common lawmaking might give rise to a vacuum in lawmaking authority.
199. Among the differences between them are these: (1) some state courts operate under reception statutes that can be viewed as delegations of lawmaking authority (although that understanding of the statutes may be quite anachronistic, see Kramer, The Lawmaking Power of the Federal Courts at 280); (2) while states generally follow separation of powers principles similar to those of the federal Constitution, there are differences as well (e.g., Nebraska has a unicameral legislature); and (3) federal common lawmaking, like federal lawmaking generally, takes place against a background of state law, see Hart & Wechsler at 521-22 (cited in note 35), whereas sharp limits on state common lawmaking might give rise to a vacuum in lawmaking authority.
200. Accord, Mashaw, 32 Wm & Mary L Rev at 838-41 (cited in note 120).
201. Sunstein, 66 U Chi L Rev (cited in note 157).
202. For discussion of some of the problems, see, for example, William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U Chi L Rev 671 (1999).
203. See generally Daniel A. Farber and Phillip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991); Symposium, 74 Va L Rev 167-518 (1988). John Manning has recently stressed that "lines drawn by a clear statutory text may reflect unrecorded compromises among interest groups, the effects of unknowable strategic behavior, or even an implicit legislative decision not to engage in costly bargaining over greater textual precision." John F. Manning, The Absurdity Doctrine, 116 Harv L Rev (forthcoming 2003). One might view the legislative history surrounding § 502(a)(3) as consistent with Manning's view, if that view is broadly conceived. According to one close observer of the process, the limitation in § 502(a)(3) was maintained because of concern that the courts, which were then wrestling with the question whether punitive damages were available under the Age Discrimination in Employment Act, would take the authorization of legal relief in § 502(a)(3) of ERISA as a signal that punitive damages should be available under the ADEA. The decision with respect to ERISA, however, was not meant to exclude punitive damages under § 502(a)(3), for there were state cases indicating that courts of equity could award punitive damages. Nor was the decision meant to embrace anything like the limitation later engrafted on § 502(a)(3) as limited to relief "typically available" in equity; rather, it was meant to fudge the issue. See Letter from Michael S. Gordon to John H. Langbein, June 14, 2002 (on file with author). With respect to Manning's general point, it is always possible that seemingly absurd textual directives are explicable by the kinds of explanations that he posits. There is an empirical question here, perhaps not decisive but important, and yet probably unknowable, and that is how often those explanations, rather than, for example, the conventional concerns about limited legislative resources, limited foresight, and the limits of language, are at work. Whatever the empirical reality, there is also a legal or constitutional question about the appropriate judicial role. Manning is a sophisticated textualist, who acknowledges that textual meaning depends on context and that context includes social and linguistic conventions. 116 Harv L Rev (forthcoming). The question then remains whether part of the context is an understanding that Congress does not seek absurd results or, more broadly still, that congressional legislation should be interpreted to fit within well-established traditions in the legal framework. Manning endorses some interpretive practices that have that character - for example, the practice of reading culpability requirements or defenses into federal criminal offenses whose text prescribes neither. Id. But the background tradition that Congress did not intend strict liability in criminal offenses, for example, is merely a more specific version of an interpretive approach that ascribes to Congress certain purposes that call for legal rules beyond those plainly specified in text. After all, strict criminal liability is neither unconstitutional nor unheard of, and so Congress might well have sought to impose it. But the presumption remains to the contrary, even when the statute does not specifically prescribe otherwise, for reasons that seem to me generalizable, as I explain in text.
204. See generally Daniel A. Farber and Phillip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991); Symposium, 74 Va L Rev 167-518 (1988). John Manning has recently stressed that "lines drawn by a clear statutory text may reflect unrecorded compromises among interest groups, the effects of unknowable strategic behavior, or even an implicit legislative decision not to engage in costly bargaining over greater textual precision." John F. Manning, The Absurdity Doctrine, 116 Harv L Rev (forthcoming 2003). One might view the legislative history surrounding § 502(a)(3) as consistent with Manning's view, if that view is broadly conceived. According to one close observer of the process, the limitation in § 502(a)(3) was maintained because of concern that the courts, which were then wrestling with the question whether punitive damages were available under the Age Discrimination in Employment Act, would take the authorization of legal relief in § 502(a)(3) of ERISA as a signal that punitive damages should be available under the ADEA. The decision with respect to ERISA, however, was not meant to exclude punitive damages under § 502(a)(3), for there were state cases indicating that courts of equity could award punitive damages. Nor was the decision meant to embrace anything like the limitation later engrafted on § 502(a)(3) as limited to relief "typically available" in equity; rather, it was meant to fudge the issue. See Letter from Michael S. Gordon to John H. Langbein, June 14, 2002 (on file with author). With respect to Manning's general point, it is always possible that seemingly absurd textual directives are explicable by the kinds of explanations that he posits. There is an empirical question here, perhaps not decisive but important, and yet probably unknowable, and that is how often those explanations, rather than, for example, the conventional concerns about limited legislative resources, limited foresight, and the limits of language, are at work. Whatever the empirical reality, there is also a legal or constitutional question about the appropriate judicial role. Manning is a sophisticated textualist, who acknowledges that textual meaning depends on context and that context includes social and linguistic conventions. 116 Harv L Rev (forthcoming). The question then remains whether part of the context is an understanding that Congress does not seek absurd results or, more broadly still, that congressional legislation should be interpreted to fit within well-established traditions in the legal framework. Manning endorses some interpretive practices that have that character - for example, the practice of reading culpability requirements or defenses into federal criminal offenses whose text prescribes neither. Id. But the background tradition that Congress did not intend strict liability in criminal offenses, for example, is merely a more specific version of an interpretive approach that ascribes to Congress certain purposes that call for legal rules beyond those plainly specified in text. After all, strict criminal liability is neither unconstitutional nor unheard of, and so Congress might well have sought to impose it. But the presumption remains to the contrary, even when the statute does not specifically prescribe otherwise, for reasons that seem to me generalizable, as I explain in text.
205. See generally Daniel A. Farber and Phillip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991); Symposium, 74 Va L Rev 167-518 (1988). John Manning has recently stressed that "lines drawn by a clear statutory text may reflect unrecorded compromises among interest groups, the effects of unknowable strategic behavior, or even an implicit legislative decision not to engage in costly bargaining over greater textual precision." John F. Manning, The Absurdity Doctrine, 116 Harv L Rev (forthcoming 2003). One might view the legislative history surrounding § 502(a)(3) as consistent with Manning's view, if that view is broadly conceived. According to one close observer of the process, the limitation in § 502(a)(3) was maintained because of concern that the courts, which were then wrestling with the question whether punitive damages were available under the Age Discrimination in Employment Act, would take the authorization of legal relief in § 502(a)(3) of ERISA as a signal that punitive damages should be available under the ADEA. The decision with respect to ERISA, however, was not meant to exclude punitive damages under § 502(a)(3), for there were state cases indicating that courts of equity could award punitive damages. Nor was the decision meant to embrace anything like the limitation later engrafted on § 502(a)(3) as limited to relief "typically available" in equity; rather, it was meant to fudge the issue. See Letter from Michael S. Gordon to John H. Langbein, June 14, 2002 (on file with author). With respect to Manning's general point, it is always possible that seemingly absurd textual directives are explicable by the kinds of explanations that he posits. There is an empirical question here, perhaps not decisive but important, and yet probably unknowable, and that is how often those explanations, rather than, for example, the conventional concerns about limited legislative resources, limited foresight, and the limits of language, are at work. Whatever the empirical reality, there is also a legal or constitutional question about the appropriate judicial role. Manning is a sophisticated textualist, who acknowledges that textual meaning depends on context and that context includes social and linguistic conventions. 116 Harv L Rev (forthcoming). The question then remains whether part of the context is an understanding that Congress does not seek absurd results or, more broadly still, that congressional legislation should be interpreted to fit within well-established traditions in the legal framework. Manning endorses some interpretive practices that have that character - for example, the practice of reading culpability requirements or defenses into federal criminal offenses whose text prescribes neither. Id. But the background tradition that Congress did not intend strict liability in criminal offenses, for example, is merely a more specific version of an interpretive approach that ascribes to Congress certain purposes that call for legal rules beyond those plainly specified in text. After all, strict criminal liability is neither unconstitutional nor unheard of, and so Congress might well have sought to impose it. But the presumption remains to the contrary, even when the statute does not specifically prescribe otherwise, for reasons that seem to me generalizable, as I explain in text.
206. See generally Daniel A. Farber and Phillip Frickey, Law and Public Choice: A Critical Introduction (Chicago, 1991); Symposium, 74 Va L Rev 167-518 (1988). John Manning has recently stressed that "lines drawn by a clear statutory text may reflect unrecorded compromises among interest groups, the effects of unknowable strategic behavior, or even an implicit legislative decision not to engage in costly bargaining over greater textual precision." John F. Manning, The Absurdity Doctrine, 116 Harv L Rev (forthcoming 2003). One might view the legislative history surrounding § 502(a)(3) as consistent with Manning's view, if that view is broadly conceived. According to one close observer of the process, the limitation in § 502(a)(3) was maintained because of concern that the courts, which were then wrestling with the question whether punitive damages were available under the Age Discrimination in Employment Act, would take the authorization of legal relief in § 502(a)(3) of ERISA as a signal that punitive damages should be available under the ADEA. The decision with respect to ERISA, however, was not meant to exclude punitive damages under § 502(a)(3), for there were state cases indicating that courts of equity could award punitive damages. Nor was the decision meant to embrace anything like the limitation later engrafted on § 502(a)(3) as limited to relief "typically available" in equity; rather, it was meant to fudge the issue. See Letter from Michael S. Gordon to John H. Langbein, June 14, 2002 (on file with author). With respect to Manning's general point, it is always possible that seemingly absurd textual directives are explicable by the kinds of explanations that he posits. There is an empirical question here, perhaps not decisive but important, and yet probably unknowable, and that is how often those explanations, rather than, for example, the conventional concerns about limited legislative resources, limited foresight, and the limits of language, are at work. Whatever the empirical reality, there is also a legal or constitutional question about the appropriate judicial role. Manning is a sophisticated textualist, who acknowledges that textual meaning depends on context and that context includes social and linguistic conventions. 116 Harv L Rev (forthcoming). The question then remains whether part of the context is an understanding that Congress does not seek absurd results or, more broadly still, that congressional legislation should be interpreted to fit within well-established traditions in the legal framework. Manning endorses some interpretive practices that have that character - for example, the practice of reading culpability requirements or defenses into federal criminal offenses whose text prescribes neither. Id. But the background tradition that Congress did not intend strict liability in criminal offenses, for example, is merely a more specific version of an interpretive approach that ascribes to Congress certain purposes that call for legal rules beyond those plainly specified in text. After all, strict criminal liability is neither unconstitutional nor unheard of, and so Congress might well have sought to impose it. But the presumption remains to the contrary, even when the statute does not specifically prescribe otherwise, for reasons that seem to me generalizable, as I explain in text.
207. See, for example, Jeremy Waldron, The Dignity of Legislation 4 (Cambridge, 1999) (referring to Great Britain).
208. See Strauss, 70 Colo L Rev at 231 (cited in note 151); Richard A. Posner, Pragmatic Adjudication, in Morris Dickstein, ed, The Revival of Pragmatism 250 (1998); Sunstein, 66 U Chi L Rev 66 U Chi L Rev at 658-59 (cited in note 157).
209. See Strauss, 70 Colo L Rev at 231 (cited in note 151); Richard A. Posner, Pragmatic Adjudication, in Morris Dickstein, ed, The Revival of Pragmatism 250 (1998); Sunstein, 66 U Chi L Rev 66 U Chi L Rev at 658-59 (cited in note 157).
210. See Strauss, 70 Colo L Rev at 231 (cited in note 151); Richard A. Posner, Pragmatic Adjudication, in Morris Dickstein, ed, The Revival of Pragmatism 250 (1998); Sunstein, 66 U Chi L Rev 66 U Chi L Rev at 658-59 (cited in note 157).
211. See Strauss, 70 Colo L Rev at 231 (cited in note 151); Richard A. Posner, Pragmatic Adjudication, in Morris Dickstein, ed, The Revival of Pragmatism 250 (1998); Sunstein, 66 U Chi L Rev 66 U Chi L Rev at 658-59 (cited in note 157).
212. See Sunstein, 66 U Chi L Rev at 659 (cited in note 157).
213. Id at 234-41.
214. See Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System 435-36 (Foundation, 1953).
215. Richard B. Stewart, Beyond Delegation Doctrine, 36 Am U L Rev 323, 331 (1987).
216. See generally James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 Mich L Rev 1, 20-26 (1994).
217. See, for example, Hart & Wechsler at 521-22 (cited in note 35).
218. Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L Rev (forthcoming 2003).
219. See generally Jonathan Macey, Separated Powers and Positive Political Theory: The Tug of War Over Administrative Agencies, 80 Georgetown L J 671 (1992).
220. See William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 782-833 (West Group, 3d ed 2001) ("Cases and Materials on Legislation"); Adrian Vermeule, Interpretive Choice, 75 NYU L Rev 74, 103 (2000).
221. See William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 782-833 (West Group, 3d ed 2001) ("Cases and Materials on Legislation"); Adrian Vermeule, Interpretive Choice, 75 NYU L Rev 74, 103 (2000).
222. See William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 782-833 (West Group, 3d ed 2001) ("Cases and Materials on Legislation"); Adrian Vermeule, Interpretive Choice, 75 NYU L Rev 74, 103 (2000).
223. See, for example, Strauss, 72 Notre Dame L Rev at 1574-75 (cited in note 157) (describing though not endorsing the argument).
224. See, for example, Colin S. Diver, The Optimal Precision of Administrative Rules, 93 Yale L J 65, 73 (1983).
225. See Brudney, 93 Mich L Rev at 23-24 (cited in note 171).
226. See Posner, The Revival of Pragmatism at 250 (cited in note 166).
227. William H. Rehnquist, The Supreme Court: How It Was, How It Is 302 (William Morrow, 1987).
228. See Katzmann, Courts and Congress at 61 (cited in note 142); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527, 528 (1947).
229. See Katzmann, Courts and Congress at 61 (cited in note 142); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527, 528 (1947).
230. See, for example, Vermeule, 75 NYU L Rev at 103-04 (cited in note 175).
231. For a list of such statutes, see, for example, Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Supreme Court Review 1, 32 nn 149-50.
232. Accord, Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 Colum L Rev 2027 (2002).
233. See Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 Geo Wash L Rev 309, 325 (2001).
234. See, for example, Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986); Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1259 (2000); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv L Rev 593, 595 (1995); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 457-58 (1989).
235. See, for example, Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986); Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1259 (2000); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv L Rev 593, 595 (1995); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 457-58 (1989).
236. See, for example, Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986); Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1259 (2000); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv L Rev 593, 595 (1995); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 457-58 (1989).
237. See, for example, Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223 (1986); Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory, 78 NC L Rev 1253, 1259 (2000); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv L Rev 593, 595 (1995); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 457-58 (1989).
238. Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U Chi L Rev 800, 806 (1983).
239. See text accompanying notes 34-39.
240. See, for example, Finley v United States, 490 US 545, 556 (1989) (Scalia); Landsgraf v USI Film Prods., 511 US 244, 272-73 (1994) (Stevens).
241. Compare Strauss, 63 U Chi L Rev at 891-94 (cited in note 57).
242. See Sunstein and Vermeule, 101 Mich L Rev (cited in note 173).
243. Eskridge et al, Cases and Materials on Legislation at 783 (cited in note 175); see also Vermeule, 75 NYU L Rev at 94-95 (cited in note 175) (discussing the possibility that legislators create text and legislative history primarily for audiences other than judges).
244. Eskridge et al, Cases and Materials on Legislation at 783 (cited in note 175); see also Vermeule, 75 NYU L Rev at 94-95 (cited in note 175) (discussing the possibility that legislators create text and legislative history primarily for audiences other than judges).
245. See, for example, INS v Cardoza-Fonseca, 480 US 421, 452 (1987) (Scalia concurring in the judgment); Green v Bock Laundry Machine Co., 490 US 504, 527 (1989) (Scalia concurring in the judgment) (when confronted with statutory language that produces an absurd result, it is appropriate "to observe that counsel have not provided, nor have we discovered, a shred of evidence that anyone has ever proposed or assumed such a bizarre disposition"). For criticism of that approach, see generally Manning, 116 Harv L Rev (cited in note 164).
246. See Siegel, 69 Geo Wash L Rev at 333 (cited in note 185).
247. See, for example, Mashaw, 32 Wm & Mary L Rev at 835-36 (cited in note 120); Frederick Schauer, The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw, 45 Vand L Rev 715, 739 (1992); Manning, 116 Harv L Rev (cited in note 164).
248. See, for example, Mashaw, 32 Wm & Mary L Rev at 835-36 (cited in note 120); Frederick Schauer, The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw, 45 Vand L Rev 715, 739 (1992); Manning, 116 Harv L Rev (cited in note 164).
249. See, for example, Mashaw, 32 Wm & Mary L Rev at 835-36 (cited in note 120); Frederick Schauer, The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw, 45 Vand L Rev 715, 739 (1992); Manning, 116 Harv L Rev (cited in note 164).
250. See, for example, Siegel, 69 Geo Wash L Rev at 324, 335 (cited in note 185); William N. Eskridge, Jr., Dynamic Statutory Interpretation 45-47 (Harvard, 1994). See also Shapiro, 67 NYU L Rev at 921 (cited in note 15). John Manning agrees that the absurdity exception cannot be reconciled with the premises of textualism, but moves in the opposite direction, seeking to require courts to uphold absurd outcomes so long as the statutory text, even after taking appropriate account of context, is clear - subject, however, to the possibility that the absurd outcome is unconstitutional because not rational under the Due Process Clause, or at least that, under the doctrine of constitutional avoidance, the court should interpret the statute as not producing the absurd result so as to avoid raising a constitutional question. See Manning, 116 Harv L Rev (cited in note 164).
251. See, for example, Siegel, 69 Geo Wash L Rev at 324, 335 (cited in note 185); William N. Eskridge, Jr., Dynamic Statutory Interpretation 45-47 (Harvard, 1994). See also Shapiro, 67 NYU L Rev at 921 (cited in note 15). John Manning agrees that the absurdity exception cannot be reconciled with the premises of textualism, but moves in the opposite direction, seeking to require courts to uphold absurd outcomes so long as the statutory text, even after taking appropriate account of context, is clear - subject, however, to the possibility that the absurd outcome is unconstitutional because not rational under the Due Process Clause, or at least that, under the doctrine of constitutional avoidance, the court should interpret the statute as not producing the absurd result so as to avoid raising a constitutional question. See Manning, 116 Harv L Rev (cited in note 164).
252. See, for example, Siegel, 69 Geo Wash L Rev at 324, 335 (cited in note 185); William N. Eskridge, Jr., Dynamic Statutory Interpretation 45-47 (Harvard, 1994). See also Shapiro, 67 NYU L Rev at 921 (cited in note 15). John Manning agrees that the absurdity exception cannot be reconciled with the premises of textualism, but moves in the opposite direction, seeking to require courts to uphold absurd outcomes so long as the statutory text, even after taking appropriate account of context, is clear - subject, however, to the possibility that the absurd outcome is unconstitutional because not rational under the Due Process Clause, or at least that, under the doctrine of constitutional avoidance, the court should interpret the statute as not producing the absurd result so as to avoid raising a constitutional question. See Manning, 116 Harv L Rev (cited in note 164).
253. See, for example, Siegel, 69 Geo Wash L Rev at 324, 335 (cited in note 185); William N. Eskridge, Jr., Dynamic Statutory Interpretation 45-47 (Harvard, 1994). See also Shapiro, 67 NYU L Rev at 921 (cited in note 15). John Manning agrees that the absurdity exception cannot be reconciled with the premises of textualism, but moves in the opposite direction, seeking to require courts to uphold absurd outcomes so long as the statutory text, even after taking appropriate account of context, is clear - subject, however, to the possibility that the absurd outcome is unconstitutional because not rational under the Due Process Clause, or at least that, under the doctrine of constitutional avoidance, the court should interpret the statute as not producing the absurd result so as to avoid raising a constitutional question. See Manning, 116 Harv L Rev (cited in note 164).
254. Compare William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U Pa L Rev 171 (2000).
255. See, for example, William N. Eskridge, Jr. and John Ferejohn, The Article I, Section 7 Game, 80 Georgetown L J 523 (1992); see also Strauss, 53 Ala L Rev at 538 (cited in note 94).
256. See, for example, William N. Eskridge, Jr. and John Ferejohn, The Article I, Section 7 Game, 80 Georgetown L J 523 (1992); see also Strauss, 53 Ala L Rev at 538 (cited in note 94).
257. See, for example, William N. Eskridge, Jr. et al, Cases and Materials on Legislation at 5-6, 61-62, 66-68 (cited in note 175); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 L & Contemp Probs 3, 11 (1994); Kenneth A. Shepsle and Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am Pol Sci Rev 85, 89 (1987).
258. See, for example, William N. Eskridge, Jr. et al, Cases and Materials on Legislation at 5-6, 61-62, 66-68 (cited in note 175); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 L & Contemp Probs 3, 11 (1994); Kenneth A. Shepsle and Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am Pol Sci Rev 85, 89 (1987).
259. See, for example, William N. Eskridge, Jr. et al, Cases and Materials on Legislation at 5-6, 61-62, 66-68 (cited in note 175); McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 L & Contemp Probs 3, 11 (1994); Kenneth A. Shepsle and Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am Pol Sci Rev 85, 89 (1987).
260. See generally Brudney, 93 Mich L Rev at 17-26 (cited in note 171); cf. Maggs, 29 Harv J Legis at 129-30 (cited in note 106) (noting the costs to the legislature when its initial draftsmanship is inadequate, thus requiring legislative effort to correct a judicial interpretation that is more likely to have been in error). I have made a similar observation with regard specifically to federal common lawmaking, noting that "legislative inertia and the political safeguards of federalism are ultimately a double-edged sword. They help explain why the authority to make federal common law is nowhere near so broad as congressional authority to legislate, but also argue that federal common lawmaking may be necessary to fill in the interstices of congressional and constitutional mandates or otherwise to deal with matters of important national concern." Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv L Rev 1128, 1170 (1986) (footnotes omitted).
261. See generally Brudney, 93 Mich L Rev at 17-26 (cited in note 171); cf. Maggs, 29 Harv J Legis at 129-30 (cited in note 106) (noting the costs to the legislature when its initial draftsmanship is inadequate, thus requiring legislative effort to correct a judicial interpretation that is more likely to have been in error). I have made a similar observation with regard specifically to federal common lawmaking, noting that "legislative inertia and the political safeguards of federalism are ultimately a double-edged sword. They help explain why the authority to make federal common law is nowhere near so broad as congressional authority to legislate, but also argue that federal common lawmaking may be necessary to fill in the interstices of congressional and constitutional mandates or otherwise to deal with matters of important national concern." Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv L Rev 1128, 1170 (1986) (footnotes omitted).
262. See generally Brudney, 93 Mich L Rev at 17-26 (cited in note 171); cf. Maggs, 29 Harv J Legis at 129-30 (cited in note 106) (noting the costs to the legislature when its initial draftsmanship is inadequate, thus requiring legislative effort to correct a judicial interpretation that is more likely to have been in error). I have made a similar observation with regard specifically to federal common lawmaking, noting that "legislative inertia and the political safeguards of federalism are ultimately a double-edged sword. They help explain why the authority to make federal common law is nowhere near so broad as congressional authority to legislate, but also argue that federal common lawmaking may be necessary to fill in the interstices of congressional and constitutional mandates or otherwise to deal with matters of important national concern." Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv L Rev 1128, 1170 (1986) (footnotes omitted).
263. See Kay Lehman Schlozman and John T. Tierney, Organized Interests and American Democracy 314-15, 395-96, 398 (Harper & Row, 1986).
264. One study found that of the relatively small number of overrides of Supreme Court decisions, a disproportionate number emerged from Judiciary Committees of the House and Senate. See Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temp L Rev 425, 449 (1992). In some respects, the low visibility of an issue may make corrective legislation easier, if some organized constituency seeks legislative revision. For discussions emphasizing the importance of interest group activity in securing legislative overrides, see, for example, Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 Am Pol Q 441 451 (1983); Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J Pub L 377, 391-92 (1965); Solimine and Walker, 65 Temp L Rev at 446-48. At the same time, the low profile of these issues may also make it harder to get them on the legislative agenda at all.
265. One study found that of the relatively small number of overrides of Supreme Court decisions, a disproportionate number emerged from Judiciary Committees of the House and Senate. See Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temp L Rev 425, 449 (1992). In some respects, the low visibility of an issue may make corrective legislation easier, if some organized constituency seeks legislative revision. For discussions emphasizing the importance of interest group activity in securing legislative overrides, see, for example, Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 Am Pol Q 441 451 (1983); Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J Pub L 377, 391-92 (1965); Solimine and Walker, 65 Temp L Rev at 446-48. At the same time, the low profile of these issues may also make it harder to get them on the legislative agenda at all.
266. One study found that of the relatively small number of overrides of Supreme Court decisions, a disproportionate number emerged from Judiciary Committees of the House and Senate. See Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temp L Rev 425, 449 (1992). In some respects, the low visibility of an issue may make corrective legislation easier, if some organized constituency seeks legislative revision. For discussions emphasizing the importance of interest group activity in securing legislative overrides, see, for example, Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 Am Pol Q 441 451 (1983); Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J Pub L 377, 391-92 (1965); Solimine and Walker, 65 Temp L Rev at 446-48. At the same time, the low profile of these issues may also make it harder to get them on the legislative agenda at all.
267. One study found that of the relatively small number of overrides of Supreme Court decisions, a disproportionate number emerged from Judiciary Committees of the House and Senate. See Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temp L Rev 425, 449 (1992). In some respects, the low visibility of an issue may make corrective legislation easier, if some organized constituency seeks legislative revision. For discussions emphasizing the importance of interest group activity in securing legislative overrides, see, for example, Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 Am Pol Q 441 451 (1983); Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J Pub L 377, 391-92 (1965); Solimine and Walker, 65 Temp L Rev at 446-48. At the same time, the low profile of these issues may also make it harder to get them on the legislative agenda at all.
268. Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 Harv J Leg 35, 99 (1996). Of course in theory, legislative drafting could be better and federal legislation more coherent There are examples at state levels (and in other countries), and suggestions at the federal level, of mechanisms for improving legislation in the first instance and for prompter and more reliable legislative response when problems surface. See, for example, Eskridge et al, Cases and Materials on Legislation at 408-09 (cited in note 175); Katzmann, Courts and Congress at 67-68 (cited in note 142). It would be foolish to suggest that something in the platonic nature of the American legislative process makes it impossible ever to improve congressional capacity to anticipate, resolve, and respond to problems. At the same time, if the life of the law is not logic but experience, the experience to date creates the most serious doubts that if the Court seeks to leave most every decision relating to a federal program to Congress, its institutional processes are up to the task.
269. Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 Harv J Leg 35, 99 (1996). Of course in theory, legislative drafting could be better and federal legislation more coherent There are examples at state levels (and in other countries), and suggestions at the federal level, of mechanisms for improving legislation in the first instance and for prompter and more reliable legislative response when problems surface. See, for example, Eskridge et al, Cases and Materials on Legislation at 408-09 (cited in note 175); Katzmann, Courts and Congress at 67-68 (cited in note 142). It would be foolish to suggest that something in the platonic nature of the American legislative process makes it impossible ever to improve congressional capacity to anticipate, resolve, and respond to problems. At the same time, if the life of the law is not logic but experience, the experience to date creates the most serious doubts that if the Court seeks to leave most every decision relating to a federal program to Congress, its institutional processes are up to the task.
270. Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 Harv J Leg 35, 99 (1996). Of course in theory, legislative drafting could be better and federal legislation more coherent There are examples at state levels (and in other countries), and suggestions at the federal level, of mechanisms for improving legislation in the first instance and for prompter and more reliable legislative response when problems surface. See, for example, Eskridge et al, Cases and Materials on Legislation at 408-09 (cited in note 175); Katzmann, Courts and Congress at 67-68 (cited in note 142). It would be foolish to suggest that something in the platonic nature of the American legislative process makes it impossible ever to improve congressional capacity to anticipate, resolve, and respond to problems. At the same time, if the life of the law is not logic but experience, the experience to date creates the most serious doubts that if the Court seeks to leave most every decision relating to a federal program to Congress, its institutional processes are up to the task.
271. See, for example, William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L J 331 (1991); Solimine and Walker, 65 Temp L Rev (cited in note 202).
272. See, for example, William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L J 331 (1991); Solimine and Walker, 65 Temp L Rev (cited in note 202).
273. Thus, for example, Professors Sunstein and Vermeule illustrate their point that interpretive techniques might conceivably affect the likelihood of legislative override by pointing to two well-known examples of textual decision making that was modified by Congress: (1) the amendment of the Delaney Clause of the Food, Drug, and Cosmetic Act, 21 USC § 348(c)(3)(A) (1994), which had been interpreted literally as imposing an absolute ban on carcinogenic substances in processed foods, see the Food Quality Protection Act of 1996, Pub L No 104-170, 110 Stat 1489 (1996), and (2) the amendment of the Endangered Species Act after a literal interpretation had blocked an important dam in order to protect the snail darter, see Pub L No 95-632, 92 Stat 3751, 3752-60 (1978) (creating an administrative procedure for exempting projects from the Act) and Pub L No 96-69, 93 Stat 437, 449 (1979) (legislating an exemption for the dam at issue in the Supreme Court case). See Sunstein and Vermeule, 101 Mich L Rev (cited in note 173).
274. See, for example, Charles E. Lindblom, The Policymaking Process 2-7 (Prentice-Hall, 2d ed 1980) (whether a legislative solution to a problem is enacted depends on confluence of saliency of problem and capacity of groups to formulate a favored solution, mobilize support, and find a receptive political environment).
275. See, for example, Stewart, 36 Am U L Rev at 330-31 (cited in note 170).
276. See Katzmann, Courts and Congress at 73-76 (cited in note 142).
277. Stefanie A. Lindquist and David A. Yalof, Congressional Responses to Federal Circuit Court Decisions, 85 Judicature 61, 64, 68 (2001) (finding that over a nine-year period, there were 120 provisions in bills reported out of committee that were responses to a federal court of appeals decision and that only sixty-five such bills were enacted, or roughly seven annually); Eskridge, 101 Yale LJ at 337-38 (cited in note 204) (finding over a twenty-four-year period that 200 lower federal court decisions were overridden by statute, an average of roughly nine annually).
278. Stefanie A. Lindquist and David A. Yalof, Congressional Responses to Federal Circuit Court Decisions, 85 Judicature 61, 64, 68 (2001) (finding that over a nine-year period, there were 120 provisions in bills reported out of committee that were responses to a federal court of appeals decision and that only sixty-five such bills were enacted, or roughly seven annually); Eskridge, 101 Yale LJ at 337-38 (cited in note 204) (finding over a twenty-four-year period that 200 lower federal court decisions were overridden by statute, an average of roughly nine annually).
279. Lindquist and Yalof, 85 Judicature at 68 (cited in note 209).
280. Compare Paul H. Robinson and John M. Darley, The Utility of Desert, 91 NW U L Rev 453, 486-87 (1997) (noting, in the context of discussing a criminal code, that social science literature supports the proposition that a code's credibility "depends on it being perceived as a trustworthy guide to assigning liabilities according to the community's perception of which actions are moral, which are immoral," and that "the higher the credibility of the code . . . , the more . . . [people] will be inclined to behave in compliance with the code").
281. Report of the Federal Courts Study Committee 91 (1990). See also Katzmann, Courts and Confess at 65-66 (cited in note 142).
282. Report of the Federal Courts Study Committee 91 (1990). See also Katzmann, Courts and Confess at 65-66 (cited in note 142).
283. This list is a subset of a fuller list provided in the Report of the Federal Courts Study Committee 91 (1990). See also Maggs, 29 Harv J Legis at 142-48 (cited in note 106).
284. This list is a subset of a fuller list provided in the Report of the Federal Courts Study Committee 91 (1990). See also Maggs, 29 Harv J Legis at 142-48 (cited in note 106).
285. D'Oench, Duhme & Co. v FDIC, 315 US 447, 469-70 (1942) (Jackson concurring). For an elaboration of the point, see H. L. A. Hart, The Concept of Law 128 (Oxford, 2d ed 1994) ("It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim. If the world in which we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. . . . This would be a world fit for 'mechanical' jurisprudence.").
286. David L. Shapiro, Jurisdiction and Discretion, 60 NYU L Rev 543, 574 (1985). Shapiro's argument focuses on questions of jurisdiction but has broader applicability.
287. California Division of Labor Standards Enforcement v Dillingham Const., N.A., Inc., 519 US 316, 335-36 (1997) (Scalia concurring).
288. See text accompanying notes 79-86.
289. For a forceful discussion of the superiority of the courts to Congress in delineating the appropriate scope of preemption, see Susan J. Stabile, Preemption of State Law by Federal Law: A Task for Congress or the Courts? 40 Vill L Rev 1 (1995).
290. See notes 229, 254.
291. This claim requires some qualification in the case of one of the illustrations, the 1996 amendments to the federal habeas corpus jurisdiction. Those amendments, in the large, were quite controversial and involved considerable lobbying on opposing sides. But the particular issue on which I focus - the retroactive effect of the amendments - does not appear to have been in the vortex of interest group politics. I do not, however, mean to generalize here about retroactivity issues, about which there is sometimes a sharp clash of interests in the legislative process, as was true, for example, with respect to the Civil Rights Act of 1991. See Landsgraf v USI Film Prods, 511 US 244, 256-57 (1994).
292. See the immediate following discussion of the enactment of the supplemental jurisdiction statute, 28 USC § 1367.
293. 490 US 545 (1989).
294. Jurisdiction in Finley was based not on § 1331, but rather on the specific and exclusive grant of subject matter jurisdiction over actions arising under the Federal Tort Claims Act. See 28 USC § 1346(b). For discussion of the government's position in Finley, which was that pendent party jurisdiction was unavailable in the context of that particular jurisdictional grant, see David L. Shapiro, Supplemental Jurisdiction: A Confession, an Avoidance, and a Proposal, 74 Ind L J 211 (1998).
295. 490 US at 547-48, 556.
296. Thus, for example, Justice Scalia's broad statements that a grant of jurisdiction "over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties," 490 US at 556, ignored then-existing practice in extending supplemental jurisdiction over, for example, third-party claims - claims often in the nature of contribution or indemnity and thus (like pendent party claims) often raising distinct factual issues even when premised on the primary claim.
297. See Report of the Federal Courts Study Committee 47 (1990).
298. Thomas D. Rowe, Jr., Stephen B. Burbank, and Thomas M. Mengler, Congress Accepts Supreme Court's Invitation to Codify Supplemental Jurisdiction, 74 Judicature 213, 216 (1991).
299. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
300. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
301. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
302. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
303. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
304. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
305. For some of the leading articles discussing the provision, see Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 Emory L J 445, 474-86 (1991); John B. Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 UC Davis L Rev 735 (1991); Thomas Rowe, Stephen Burbank, and Thomas Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L J 943 (1991) (and subsequent rebuttals and surrebuttals in the same issue); Denis F. McLaughlin, The Federal Supplemental Jurisdiction Statute - A Constitutional and Statutory Analysis, 24 Ariz St L J 849 (1992); Arthur D. Wolf, Codification of Supplemental Jurisdiction: Anatomy of a Legislative Proposal, 14 W New Eng L Rev 1 (1992); Joan Steinman, Supplemental Jurisdiction in § 1441 Removed Cases: An Unsurveyed Frontier of Congress' Handiwork, 35 Ariz L Rev 305 (1993). See also Siegel, 69 Geo Wash L Rev at 320-23 (cited in note 185).
306. Another illustration of the shortcomings of congressional drafting, even when focused on a narrow question and relatively free from interest group politics, involves the amendment of the federal officer removal statute, 28 USC § 1442(a)(1). In International Primate Protection League v Administrators of Tulane Educational Fund, 500 US 72 (1991), the Court unanimously ruled that § 1442(a)(1), although it authorized removal of actions against officials of federal agencies, did not authorize removal of actions against federal agencies themselves. The Court relied heavily on § 1442(a)(1)'s wording and its grammar (particularly the absence in one place of a comma). But it proceeded to reject the contention that its interpretation was absurd, asserting that the issue of an agency's immunity was far more straightforward (and thus less hazardous to litigate in a possibly hostile state court) than was the immunity of a federal official. That explanation was makeweight, for with extremely limited exceptions, the jurisdictional statutes generally express a clear preference for permitting the federal government to seek federal court resolution of all questions of the authority of federal agencies or officials to act, and of all suits in which the United States is a party. Indeed, most waivers of federal sovereign immunity are limited to federal court. See, for example, Aminoil USA, Inc. v California State Water Resources Control Bd., 674 F2d 1227, 1233 (9th Cir 1982). And the Court's decision gave plaintiffs like those in the Primate Protection case, who were seeking specific relief (as to which Congress has waived federal sovereign immunity), the option of bringing a state court action either against the agency (which could not be removed) or against its officials (who could and inevitably would remove to federal court). Giving plaintiffs rather than the United States the forum choice in a suit challenging federal official action is unusual to say the least. Congress evidently shared that view and five years later passed a statute that, both the House and Senate reports indicated, was meant to overrule the Primate Protection decision, authorizing removal by agencies of the United States, as well as by the United States itself. See Federal Courts Improvement Act of 1996, Pub L No 104-317, § 206, 110 Stat 3847; S Rep 104-336, 104th Cong, 2d Sess 31 (1996); H Rep 104-798, 104th Cong, 2d Sess 19-20 (1996). However, the draftsmanship of the 1996 Congress, like that of its predecessor in 1948, left something to be desired. The amended provision permits removal by any of the following defendants: "The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . ." Under the interpretive methodology of the Primate Protection decision, one would give considerable weight to the presence or absence of commas, and note that the amended section has no comma between "the United States or any agency thereof," on the one hand, and "any officer . . . of the United States or any agency thereof," on the other. Such a comma would have indicated that the succeeding phrase, "sued in an official or individual capacity for any act under color of such office," modifies only "officer of the United States or of any agency" rather than "the United States or any agency thereof"; but there being no comma, the amended provision permits the United States or an agency thereof to remove only when it is "sued in an official or individual capacity for any act under color of such office" -perhaps a null set and surely a peculiar category. I rather think that even those Justices enamored of text and disdainful of legislative history would not have the temerity to say again that the statute does not authorize a federal agency to remove in cases in which the plaintiff does not purport to sue the federal government "in an official or individual capacity for any act under color of such office"-whatever that would mean. Perhaps this is a case where literalism would lead to an "absurd result," which, even the textualists say, licenses them not to be textualists. See text accompanying note 193 But if I am correct in predicting that textualism will not rule this time around, one may fairly wonder whether it had to have ruled in Primate Protection. And at a minimum, this episode, too, highlights the shortcomings of congressional drafting and, as a result, the hazards of a judicial approach that places excessive faith in the comprehensive omniscience of legislative drafting.
307. For the relevant portion of the approved proposal, see ALI Federal Judicial Code Revision Project, Tentative Draft No. 2 (1998).
308. See, for example, Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 USC § 1367, 74 Ind L J 1 (1998).
309. See Edward A. Hartnett, Would the Kroger Rule Survive the ALI's Proposed Revision of § 1367, 51 Duke L J 647 (2001). The article is one part of a four-part colloquy on Supplemental Jurisdiction, the ALI, and the Rule of the Kroger Case in that issue of the Duke Law Journal, featuring an exchange between Hartnett and John Oakley, the Reporter for the ALI Project.
310. 437 US 365 (1978). In Kroger Equipment, an Iowa citizen brought a diversity action against a Nebraska citizen, who in turn filed a third-party complaint against an Iowa citizen. The Supreme Court ruled that when the plaintiff subsequently amended her complaint to name the third-party defendant as an additional defendant, there was an absence of complete diversity and that plaintiff's claim against the third-party defendant could not be heard on a theory of ancillary jurisdiction.
311. John B. Oakley, Integrating Supplemental Jurisdiction and Diversity Jurisdiction: A Progress Report on the Work of the American Law Institute, 74 Ind L J 25, 44 (1998).
312. See, for example, the Symposium on the American Law Institute: Process, Partisanship, and the Restatements of Law, 26 Hofstra L Rev 567-834 (1998).
313. See text accompanying note 214.
314. Shapiro, 74 Ind L J at 218 (cited in note 223) (suggesting it would be preferable were Congress to "enact a law establishing the principle of supplemental jurisdiction, and then * * * leave all or most of the details to be worked out by the courts").
315. See id.
316. Pub L No 104-132, 110 Stat 1214.
317. Section 107(c), 110 Stat 1226.
318. See Spears v Stewart, 267 F3d 1026 (9th Cir 2001), amended and superseded by 283 F3d 992 (9th Cir 2002). Even that conclusion is subject to dispute. The panel in Spears carefully analyzed Arizona's system and found that it met the statutory conditions, but also refused to enforce the provisions of Chapter 154 in the case at bar because Arizona had not complied with its own rules requiring timely appointment of postconviction counsel. On rehearing, eleven judges joined in whole or in part in an opinion, dissenting from the denial of rehearing en banc, that characterized the panel's opinion as dictum.
319. Block v North Dakota, 461 US 273, 286 n 23 (1983) (internal quotation marks omitted).
320. 28 USC § 2254(d).
321. 521 US 320 (1997).
322. Id at 327.
323. See id at 337-45 (Rehnquist dissenting).
324. See, for example, Nichols v Bowersox, 172 F3d 1068, 1073 (8th Cir 1999) (en banc); Wilcox v Florida Dep't of Corrections, 158 F3d 1209, 1211 (11th Cir 1998). The Supreme Court's decision in Lindh held only that Chapter 153's provisions do not apply to petitions filed before April 24, 1996. While most courts have ruled that the core provision in Chapter 153 - the limitation in §2254(d) on the scope of federal habeas review - does apply to petitions filed after that date, the courts have recognized, in Judge Luttig's words, that the Lindh decision "left open the possibility . . . that it would not apply the new provisions of chapter 153 even to a post-enactment petition if doing so would result in an impermissible retroactive effect." Mueller v Angelone, 181 F3d 557 568 (4th Cir 1999).
325. See, for example, In re Hanserd, 123 F3d 922, 933 (6th Cir 1997).
326. See, for example, Burris v Parke, 95 F3d 465, 468 (7th Cir 1996) (en banc).
327. In re Medina, 109 F3d 1556, 1563 (11th Cir 1997).
328. See, for example, Graham v Johnson, 168 F3d 762 (5th Cir 1999); In re Minarik, 166 F3d 591 (3d Cir 1999).
329. 529 US 473, 479-82 (2000).
330. In addition, such statutory specification would have resolved a question on which the circuits remain divided - whether exemption from the retroactive application of the successive petition provisions requires proof of detrimental reliance.
331. See, for example, note 229. Jonathan Siegel, in What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 Geo Wash L Rev at 309 (cited in note 185), discusses another example, from an older enactment, the federal venue statute, 28 USC § 1391, that exhibits many of the same features. See also id at 352-58 (discussing still another example, this one involving 1988 amendments to the diversity jurisdiction statute, 28 USC § 1332, pertaining to aliens). Still another example reaches back to the 1948 revision of the Anti-Injunction Act, now codified in 28 USC § 2283. In that year, Congress codified a set of exceptions to the general ban on anti-suit injunctions. The Supreme Court has since stressed that the courts are not to add to those exceptions nor to expand them by loose construction. See, for example, Atlantic Coast Line R.R. Co. v Bhd of Locomotive Eng'rs, 398 US 281, 286-87 (1970); Amalgamated Clothing Workers v Richman Bros., 348 US 511, 515-16 (1955). In one instance the Court has departed from that approach, recognizing an additional, nonstatutory exception for injunctions sought by the United States-an exception that, in its view, Congress simply failed to anticipate. See Leiter Minerals, Inc. v United States, 352 US 220 (1957). But otherwise, the current provision, as the Court has interpreted it, substituted legislative specification for a more flexible system of judge-made law that existed prior to 1948. There is much, of course, that Congress did not and could not foresee in 1948. A salient example is the phenomenon of class actions unleashed by the 1966 changes to Rule 23 of the Federal Rules of Civil Procedure. Especially pertinent to the problem of anti-suit injunctions are the problems caused by rival class actions in different courts, leading, in the view of some, to both (i) a "reverse auction" that favors defendants and the first set of lawyers to reach a settlement at the expense of class members, and (ii) a "race to the bottom" to find the jurisdiction with the most forgiving standards for certifying classes and/ or approving settlements. The question of the circumstances in which a federal court should be able to enjoin state court actions that threaten to interfere with administration of a pending federal class action is thus an important one. It is also complex, and may depend on such factors as: (i) the kind of federal class action (Rule 23(b)(1), (b)(2), or (b)(3)); (ii) whether the state court action was brought by members of the federal class; and (iii) whether the injunction is sought before certification, after certification but before the time for opting-out in (b)(3) actions, after formulation of a proposed settlement, or after entry of judgment. Congress has not addressed this question, however, and while some lower courts have read the "in aid of jurisdiction" exception to § 2283 as broadly permitting anti-suit injunctions in class actions, see, for example, Carlough v Amchem Prods., Inc., 10 F3d 189 202 (3d Cir 1993), that conclusion is to say the least, hardly an obvious one, see Rhonda Wasserman, Dueling Class Actions, 80 BU L Rev 461 (2000); Joan Steinman, Managing Punitive Damages: A Role for Mandatory "Limited Generosity" Classes and Anti-Suit Injunctions? 36 Wake Forest L Rev 1043, 1091-94 (2000). In determining whether federal courts may issue anti-suit injunctions, an alternative, and I believe preferable, approach would have been for Congress, in 1948, not to have provided (or for the Court not to have interpreted Congress as having provided) that only Congress may formulate exceptions to the ban. Instead, one could have left intact the pre-1948 tradition in which courts applied the general policy against anti-suit injunctions to particular situations that may call for an exception. Compare David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U Chi L Rev 268, 329 (1929) (proposing a standard under which "The federal courts shall not enjoin pending or threatened proceedings in state courts unless there is no other effective means of avoiding grave and irreparable harm.").
332. See, for example, note 229. Jonathan Siegel, in What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 Geo Wash L Rev at 309 (cited in note 185), discusses another example, from an older enactment, the federal venue statute, 28 USC § 1391, that exhibits many of the same features. See also id at 352-58 (discussing still another example, this one involving 1988 amendments to the diversity jurisdiction statute, 28 USC § 1332, pertaining to aliens). Still another example reaches back to the 1948 revision of the Anti-Injunction Act, now codified in 28 USC § 2283. In that year, Congress codified a set of exceptions to the general ban on anti-suit injunctions. The Supreme Court has since stressed that the courts are not to add to those exceptions nor to expand them by loose construction. See, for example, Atlantic Coast Line R.R. Co. v Bhd of Locomotive Eng'rs, 398 US 281, 286-87 (1970); Amalgamated Clothing Workers v Richman Bros., 348 US 511, 515-16 (1955). In one instance the Court has departed from that approach, recognizing an additional, nonstatutory exception for injunctions sought by the United States-an exception that, in its view, Congress simply failed to anticipate. See Leiter Minerals, Inc. v United States, 352 US 220 (1957). But otherwise, the current provision, as the Court has interpreted it, substituted legislative specification for a more flexible system of judge-made law that existed prior to 1948. There is much, of course, that Congress did not and could not foresee in 1948. A salient example is the phenomenon of class actions unleashed by the 1966 changes to Rule 23 of the Federal Rules of Civil Procedure. Especially pertinent to the problem of anti-suit injunctions are the problems caused by rival class actions in different courts, leading, in the view of some, to both (i) a "reverse auction" that favors defendants and the first set of lawyers to reach a settlement at the expense of class members, and (ii) a "race to the bottom" to find the jurisdiction with the most forgiving standards for certifying classes and/ or approving settlements. The question of the circumstances in which a federal court should be able to enjoin state court actions that threaten to interfere with administration of a pending federal class action is thus an important one. It is also complex, and may depend on such factors as: (i) the kind of federal class action (Rule 23(b)(1), (b)(2), or (b)(3)); (ii) whether the state court action was brought by members of the federal class; and (iii) whether the injunction is sought before certification, after certification but before the time for opting-out in (b)(3) actions, after formulation of a proposed settlement, or after entry of judgment. Congress has not addressed this question, however, and while some lower courts have read the "in aid of jurisdiction" exception to § 2283 as broadly permitting anti-suit injunctions in class actions, see, for example, Carlough v Amchem Prods., Inc., 10 F3d 189 202 (3d Cir 1993), that conclusion is to say the least, hardly an obvious one, see Rhonda Wasserman, Dueling Class Actions, 80 BU L Rev 461 (2000); Joan Steinman, Managing Punitive Damages: A Role for Mandatory "Limited Generosity" Classes and Anti-Suit Injunctions? 36 Wake Forest L Rev 1043, 1091-94 (2000). In determining whether federal courts may issue anti-suit injunctions, an alternative, and I believe preferable, approach would have been for Congress, in 1948, not to have provided (or for the Court not to have interpreted Congress as having provided) that only Congress may formulate exceptions to the ban. Instead, one could have left intact the pre-1948 tradition in which courts applied the general policy against anti-suit injunctions to particular situations that may call for an exception. Compare David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U Chi L Rev 268, 329 (1929) (proposing a standard under which "The federal courts shall not enjoin pending or threatened proceedings in state courts unless there is no other effective means of avoiding grave and irreparable harm.").
333. See, for example, note 229. Jonathan Siegel, in What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 Geo Wash L Rev at 309 (cited in note 185), discusses another example, from an older enactment, the federal venue statute, 28 USC § 1391, that exhibits many of the same features. See also id at 352-58 (discussing still another example, this one involving 1988 amendments to the diversity jurisdiction statute, 28 USC § 1332, pertaining to aliens). Still another example reaches back to the 1948 revision of the Anti-Injunction Act, now codified in 28 USC § 2283. In that year, Congress codified a set of exceptions to the general ban on anti-suit injunctions. The Supreme Court has since stressed that the courts are not to add to those exceptions nor to expand them by loose construction. See, for example, Atlantic Coast Line R.R. Co. v Bhd of Locomotive Eng'rs, 398 US 281, 286-87 (1970); Amalgamated Clothing Workers v Richman Bros., 348 US 511, 515-16 (1955). In one instance the Court has departed from that approach, recognizing an additional, nonstatutory exception for injunctions sought by the United States-an exception that, in its view, Congress simply failed to anticipate. See Leiter Minerals, Inc. v United States, 352 US 220 (1957). But otherwise, the current provision, as the Court has interpreted it, substituted legislative specification for a more flexible system of judge-made law that existed prior to 1948. There is much, of course, that Congress did not and could not foresee in 1948. A salient example is the phenomenon of class actions unleashed by the 1966 changes to Rule 23 of the Federal Rules of Civil Procedure. Especially pertinent to the problem of anti-suit injunctions are the problems caused by rival class actions in different courts, leading, in the view of some, to both (i) a "reverse auction" that favors defendants and the first set of lawyers to reach a settlement at the expense of class members, and (ii) a "race to the bottom" to find the jurisdiction with the most forgiving standards for certifying classes and/ or approving settlements. The question of the circumstances in which a federal court should be able to enjoin state court actions that threaten to interfere with administration of a pending federal class action is thus an important one. It is also complex, and may depend on such factors as: (i) the kind of federal class action (Rule 23(b)(1), (b)(2), or (b)(3)); (ii) whether the state court action was brought by members of the federal class; and (iii) whether the injunction is sought before certification, after certification but before the time for opting-out in (b)(3) actions, after formulation of a proposed settlement, or after entry of judgment. Congress has not addressed this question, however, and while some lower courts have read the "in aid of jurisdiction" exception to § 2283 as broadly permitting anti-suit injunctions in class actions, see, for example, Carlough v Amchem Prods., Inc., 10 F3d 189 202 (3d Cir 1993), that conclusion is to say the least, hardly an obvious one, see Rhonda Wasserman, Dueling Class Actions, 80 BU L Rev 461 (2000); Joan Steinman, Managing Punitive Damages: A Role for Mandatory "Limited Generosity" Classes and Anti-Suit Injunctions? 36 Wake Forest L Rev 1043, 1091-94 (2000). In determining whether federal courts may issue anti-suit injunctions, an alternative, and I believe preferable, approach would have been for Congress, in 1948, not to have provided (or for the Court not to have interpreted Congress as having provided) that only Congress may formulate exceptions to the ban. Instead, one could have left intact the pre-1948 tradition in which courts applied the general policy against anti-suit injunctions to particular situations that may call for an exception. Compare David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U Chi L Rev 268, 329 (1929) (proposing a standard under which "The federal courts shall not enjoin pending or threatened proceedings in state courts unless there is no other effective means of avoiding grave and irreparable harm.").
334. See, for example, note 229. Jonathan Siegel, in What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 Geo Wash L Rev at 309 (cited in note 185), discusses another example, from an older enactment, the federal venue statute, 28 USC § 1391, that exhibits many of the same features. See also id at 352-58 (discussing still another example, this one involving 1988 amendments to the diversity jurisdiction statute, 28 USC § 1332, pertaining to aliens). Still another example reaches back to the 1948 revision of the Anti-Injunction Act, now codified in 28 USC § 2283. In that year, Congress codified a set of exceptions to the general ban on anti-suit injunctions. The Supreme Court has since stressed that the courts are not to add to those exceptions nor to expand them by loose construction. See, for example, Atlantic Coast Line R.R. Co. v Bhd of Locomotive Eng'rs, 398 US 281, 286-87 (1970); Amalgamated Clothing Workers v Richman Bros., 348 US 511, 515-16 (1955). In one instance the Court has departed from that approach, recognizing an additional, nonstatutory exception for injunctions sought by the United States-an exception that, in its view, Congress simply failed to anticipate. See Leiter Minerals, Inc. v United States, 352 US 220 (1957). But otherwise, the current provision, as the Court has interpreted it, substituted legislative specification for a more flexible system of judge-made law that existed prior to 1948. There is much, of course, that Congress did not and could not foresee in 1948. A salient example is the phenomenon of class actions unleashed by the 1966 changes to Rule 23 of the Federal Rules of Civil Procedure. Especially pertinent to the problem of anti-suit injunctions are the problems caused by rival class actions in different courts, leading, in the view of some, to both (i) a "reverse auction" that favors defendants and the first set of lawyers to reach a settlement at the expense of class members, and (ii) a "race to the bottom" to find the jurisdiction with the most forgiving standards for certifying classes and/ or approving settlements. The question of the circumstances in which a federal court should be able to enjoin state court actions that threaten to interfere with administration of a pending federal class action is thus an important one. It is also complex, and may depend on such factors as: (i) the kind of federal class action (Rule 23(b)(1), (b)(2), or (b)(3)); (ii) whether the state court action was brought by members of the federal class; and (iii) whether the injunction is sought before certification, after certification but before the time for opting-out in (b)(3) actions, after formulation of a proposed settlement, or after entry of judgment. Congress has not addressed this question, however, and while some lower courts have read the "in aid of jurisdiction" exception to § 2283 as broadly permitting anti-suit injunctions in class actions, see, for example, Carlough v Amchem Prods., Inc., 10 F3d 189 202 (3d Cir 1993), that conclusion is to say the least, hardly an obvious one, see Rhonda Wasserman, Dueling Class Actions, 80 BU L Rev 461 (2000); Joan Steinman, Managing Punitive Damages: A Role for Mandatory "Limited Generosity" Classes and Anti-Suit Injunctions? 36 Wake Forest L Rev 1043, 1091-94 (2000). In determining whether federal courts may issue anti-suit injunctions, an alternative, and I believe preferable, approach would have been for Congress, in 1948, not to have provided (or for the Court not to have interpreted Congress as having provided) that only Congress may formulate exceptions to the ban. Instead, one could have left intact the pre-1948 tradition in which courts applied the general policy against anti-suit injunctions to particular situations that may call for an exception. Compare David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U Chi L Rev 268, 329 (1929) (proposing a standard under which "The federal courts shall not enjoin pending or threatened proceedings in state courts unless there is no other effective means of avoiding grave and irreparable harm.").
335. Legislatures do, on occasion, enact principles of statutory construction, either in general or in connection with particular measures, and Congress has broad (though not unlimited) power to prescribe such rules. See Nicholas Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv L Rev 2085 (2002). But insofar as the plea in this article may go unheeded by the courts, it seems doubtful to me that Congress can effectively redress the problems that I have addressed by enacting principles of statutory construction calling for a shift in judicial course. Any such congressional effort would be subject to many of the same problems as are efforts to prescribe all of the substantive rules under a substantive regulatory regime. Reducing statutory interpretive practices, which by their nature are complex and contextual, to a statutory code would be extraordinarily difficult. If the Great-West Life decision has among its defects an excessive reliance on text, how would one address that problem? By instructing courts to consider the text but not too much? To interpret language in light of context so that the results make sense? Statutory interpretation is an art, and I do not believe that meta-instructions can be shaped with sufficient determinacy that they can effectively order judges who may be otherwise inclined to adopt what Congress might view as a more "correct" approach to decision making.