Procedural common law

Virginia Law Review

Volumn 94, Issue 4, 2008, Pages 813-888

  Barrett, Amy Coney ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 47249094154     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (304)

1. 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4505 (2d ed. 1996).
2. Henry J. Friendly, In Praise of Erie-And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 405 (1964).
3. See, e.g., Texas Indus, v. Radcliff Materials, 451 U.S. 630, 641 (1981) (listing enclaves of federal common law).
4. See Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 Wis. L. Rev. 39, 178-81 (observing that state courts need not "mimic federal courts procedurally," even when they hear cases involving federal law).
5. See infra notes 59-65 and accompanying text.
6. See infra notes 95-98 and accompanying text.
7. See infra notes 203-04 and accompanying text. See generally Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006).
8. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 480 (1793).
9. Barker v. Wingo, 407 U.S. 514, 530 n.29 (1972).
10. 304 U.S. 64, 78 (1938).
11. Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 726 (2004) (noting that after Erie, federal courts dropped their claim of general common lawmaking competence and "withdrew to havens of specialty").
12. Erie, 304 U.S. at 71.
13. See Friendly, supra note 2, at 405 ("Erie led to the emergence of a federal decisional law in areas of national concern that is truly uniform because, under the supremacy clause, it is binding in every forum, and therefore is predictable and useful as its predecessor, more general in subject matter but limited to the federal courts, was not.");
14. see also Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 878-79 (2007) (describing this preemptive bite as the "basic animating principle of post-Erie federal common law").
15. Texas Indus, v. Radcliff Materials, 451 U.S. 630, 641 (1981).
16. Boyle v. United Techs. 487 U.S. 500, 504 (1988); see also Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Colum. L. Rev. 1024, 1025 (1967) ("[T]here are areas of federal preemption, created by force of the Constitution, in which the federal courts formulate rules of decision without guidance from statutory or constitutional standards ....").
17. To be sure, this explanation of federal common law is neither perfect, see Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. U. L. Rev. 585, 623-27 (2006) (describing strengths and weaknesses of the preemption theory), nor uniformly accepted, see, e.g., Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 119-48 (2d ed. 1990) (advocating a narrower view); Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805, 805 (1989) (advocating a broader view). I do not here engage the debate regarding the proper justification for the federal courts' power to make substantive federal common law. For present purposes, I assume the correctness of the traditional explanation.
18. Hill, supra note 15, at 1042.
19. See Note, An Objection to Sosa-And to the New Federal Common Law, 119 Harv. L. Rev. 2077, 2083 (2006) (describing this phenomenon).
20. Id.
21. See infra notes 59-65.
22. See infra notes 55-58 and accompanying text.
23. Cf. Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum. L. Rev. 1433, 1474-75 (1984) (defining substantive rules as those "concerned principally with policies extrinsic to litigation" and procedural rules as those designed "to enhance the fairness, reliability, or efficiency of the litigation process"). The status of these five doctrines as "procedural" can also be defended by the circular argument that procedural common law is the only kind of common law that does not bind the states, and none of these doctrines, as a rule, applies in state courts. While this argument does not conclusively establish that any of these doctrines is procedural, it does illustrate that both state and federal courts treat them as such.
24. The fact that these doctrines are "judge made" does not mean that judges have made them up out of whole cloth. On the contrary, judges fashion much federal common law, including procedural common law, by drawing from norms generally accepted by the legal community. See generally Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006).
25. On the difficulty of defining "procedure," see, for example, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 559 (1949) (Rutledge, J., dissenting) ("Suffice it to say that actually in many situations procedure and substance are so interwoven that rational separation becomes well-nigh impossible."). For competing definitions of "common law," compare Hill, supra note 15, at 1026 (defining "common law" narrowly by excluding from its reach all rules traceable to some statutory or constitutional text, no matter how tangentially),
26. with Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 5 (1985) (defining common law broadly to include any rule not appearing on the face of some constitutional or statutory provision, "whether or not that rule can be described as the product of 'interpretation' in either a conventional or an unconventional sense").
27. There are many doctrines whose status as procedural common law is contestable. For example, people might agree that a rule excluding involuntary confessions is a common law rule, but disagree about whether that requirement is procedural or substantive. Compare McNabb v. United States, 318 U.S. 332, 340 (1943) (treating such a rule as procedural), with Beale, supra note 22, at 1475-76 (treating it as substantive). Similarly, people might agree that the well-pleaded complaint rule, see Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152-53 (1908), is procedural, but disagree about whether it results from common lawmaking or statutory interpretation. Compare Richard A. Matasar & Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 Colum. L. Rev. 1291, 1333 (1986) (treating rule as one of common law because the text of 28 U.S.C. § 1331 does not so restrict federal question jurisdiction), with Hill, supra note 15, at 1026 (adopting a narrower definition of common lawmaking under which the well-pleaded complaint rule would be treated as statutory interpretation).
28. See Colo. River v. United States, 424 U.S. 800, 817 (1976); Younger v. Harris, 401 U.S. 37, 43-44 (1971); La. Power & Light Co. v. Thibodaux, 360 U.S. 25, 27-29 (1959); Burford v. Sun Oil Co., 319 U.S. 315, 332-33 (1943); R.R. Comm'n v. Pullman Co., 312 U.S. 496, 500-01 (1941).
29. See Gene R. Shreve, Pragmatism Without Politics - A Half-Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767, 797 (1991) (dubbing the doctrines a kind of "jurisdictional common law");
30. see also Colo. River, 424 U.S. at 817 (grounding propriety of dismissal in "[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation") (citations omitted);
31. Younger, 401 U.S. at 43 (grounding abstention from issuing injunctions against state criminal prosecutions in the policies reflected generally in certain statutes and in equitable tradition);
32. Thibodaux, 360 U.S. at 28 (holding that concerns of comity justify abstention in certain circumstances even in suits at law, as opposed to suits at equity);
33. Burford, 319 U.S. at 333 n.29 (grounding the power to abstain in the powers traditionally exercised by courts sitting in equity and the guidelines for its exercise in federalism);
34. Pullman, 312 U.S. at 500-01 (justifying abstention with reference to both the traditional powers of equity courts and regard for the "harmonious relation between state and federal authority").
35. See Colo. River, 424 U.S. at 825-26 (Stewart, J., dissenting);
36. Thibodaux, 360 U.S. at 31-34 (Brennan, J., dissenting);
37. Burford, 319 U.S. at 336, 347-48 (Frankfurter, J., dissenting);
38. Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71, 76-79 (1984).
39. See Matasar & Bruch, supra note 25, at 1337-42 (1986); Redish, supra note 28, at 80-84;
40. David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 547-52, 574-75, 579-85 (1985);
41. Shreve, supra note 27, at 769-72, 796-98.
42. See Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947).
43. Id. at 508. The doctrine only applies when the more convenient forum is foreign because 28 U.S.C. § 1404, enacted in 1948, governs transfers between United States district courts.
44. See Gulf Oil, 330 U.S. at 507 (describing forum non conveniens as a common law doctrine); id. at 505 n.4 (asserting that "[t]he doctrine did not originate in federal but in state courts"); id. at 507 (observing that "[t]he federal law contains no ... express criteria to guide the district court in exercising [the forum non conveniens] power" but that "the common law [has] worked out techniques and criteria for dealing with it").
45. See id. at 513 (Black, J., dissenting) (protesting forum non conveniens on this ground).
46. Gulf Oil v. Gilbert, 330 U.S. 501 (1947).
47. See, e.g., Chambers v. NASCO, 501 U.S. 32, 44 (1991) (including in a list of inherent judicial powers the power to dismiss a case on grounds of forum non conveniens);
48. Elizabeth T. Lear, Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of Inherent Power, 91 Iowa L. Rev. 1147 (2006) (treating forum non conveniens as an exercise of the judiciary's inherent power).
49. See Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 1017-18, 1018 n.20 (2003).
50. See Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 319-21 (2005).
51. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-69 (1992) (plurality opinion).
52. Barrett, supra note 36, at 1015 & n.13.
53. See, e.g., Agostini v. Felton, 521 U.S. 203, 235 (1997) ("[S]tare decisis is not an inexorable command, but instead reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.") (citations and internal quotation marks omitted);
54. Adarand Constructors v. Pena, 515 U.S. 200, 231-35 (1995) (opinion of O'Connor, J.) ('"[S]tare decisis is a principle of policy ....'" (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940));
55. see also John Harrison, The Power of Congress over the Rules of Precedent, 50 Duke L.J. 503, 525-29 (2000) (characterizing norms of precedent as "federal common law");
56. Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 Const. Comment. 191, 212 (2001) (characterizing stare decisis as judicially determined);
57. Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1548 (2000) ("The point is that stare decisis is a policy judgment, not a rule of law specified in the Constitution or clearly implicit in its provisions or overall structure.").
58. See, e.g., Harrison, supra note 40, at 525-29.
59. See, e.g., Lawson, supra note 40, at 202-04, 207.
60. 19 Wright et al., supra note 1, § 4505 n.61.
61. See Dimick v. Schiedt, 293 U.S. 474, 483 (1935).
62. Blunt v. Little, 3 F. Cas. 760, 762 (C.C.D. Mass. 1822) (No. 1578) (ordering that the case be "submitted to another jury, unless the plaintiff is willing to remit $500 of his damages," though noting that in entering this order, "I believe that I go to the very limits of the law").
63. See Dimick, 293 U.S. at 483 (noting longevity of practice and collecting cases).
64. 11 Wright et al., supra note 1, § 2815. There are some courts, however, that reduce the award to the minimum amount the jury could have awarded, and still others that reduce the verdict to whatever amount the court thinks is fair. Id.
65. See 18A Wright et. al., supra note 1, § 4406; see also id. §§ 4428-47.
66. Id. § 4416. Note that the doctrine of offensive nonmutual issue preclusion provides a limited exception to this rule insofar as it limits the circumstances under which those who were not parties to a prior suit can assert issue preclusion against those who were. See Parklane Hosiery v. Shore, 439 U.S. 322, 331-32 (1979).
67. See, e.g., Semtek Int'l v. Lockheed Martin, 531 U.S. 497, 508 (2001) (holding that "federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity"); United States v. Stauffer Chem., 464 U.S. 165, 176 (1984) (White, J., concurring) (referring to the "flexible, judge-made doctrine" of collateral estoppel); United States v. Mendoza, 464 U.S. 154, 158 (1984) (referring to the "judicially developed doctrine of collateral estoppel"); Allen v. McCurry, 449 U.S. 90, 96 (1980) ("[FJederal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts."). With respect to preclusion's common law pedigree, it is also worth noting that the federal courts have not drawn the content of federal preclusion from any statutory or constitutional provision; rather, in fashioning preclusion law, the federal courts have drawn heavily from secondary sources and the practice of state courts. See, e.g., Montana v. United States, 440 U.S. 147, 153-55 (1979) (relying heavily on Restatement (Second) of Judgments, Moore's Federal Practice, and law review articles in identifying the fundamental precepts of preclusion); id. at 164 (Rehnquist, J., concurring) (recognizing influence of secondary sources on majority decision); Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S. 313, 322-27 (1971) (relying heavily on state cases and secondary sources in abandoning mutuality requirement for defensive issue preclusion).
68. 531 U.S. 497 (2001). In Semtek, the Supreme Court held that federal common law governs the preclusive effect given all federal judgments, including judgments rendered by federal courts sitting in diversity. Id. at 507-08. On the one hand, the Court suggested that preclusion is procedural. See, e.g., id. at 501 (positing that the Conformity Act, which required federal courts to follow state procedure, would have required federal courts to follow state preclusion law); id. at 509 (suggesting that federal preclusion law is shaped by "federal courts' interest in the integrity of their own processes"). On the other hand, the Court also suggested that preclusion is substantive. See id. at 503 (opining that if Fed. R. Civ. P. 41(b) governed the preclusive effect that state courts must give federal court judgments, it might violate the Rules Enabling Act prohibition on rules that "abridge, enlarge or modify any substantive right") (citations omitted).
69. Cf. Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 Cornell L. Rev. 733, 747-48 (1986) (describing-and criticizing-the traditional account, which treats preclusion as "largely a reflex of procedural law").
70. There have, however, been academic efforts to justify preclusion in its interjurisdictional form. See, e.g., Burbank, supra note 52, at 764, 770 (arguing that interjurisdictional preclusion is a substantive doctrine justified by the need for uniform federal rules); Ronan E. Degnan, Federalized Res Judicata, 85 Yale L.J. 741, 769 (1976) (arguing that interjurisdictional preclusion is a procedural doctrine that federal courts have the inherent authority to adopt).
71. Semtek, 531 U.S. at 507-08;
72. see also Burbank, supra note 52, at 753-97.
73. See Harris v. Rivera, 454 U.S. 339, 344-45 (1981) (per curiam) ("Federal judges ... may not require the observance of any special procedures [in state courts] except when necessary to assure compliance with the dictates of the Federal Constitution."). But see supra note 51.
74. It is probably rooted in the choice-of-law principle that the procedure of the forum generally controls. Restatement (First) of Conflict of Laws § 585 (1934) ("All matters of procedure are governed by the law of the forum.").
75. The Supreme Court has occasionally displaced state procedure without explaining its deviation from the general rule that federal judges cannot control state procedure. For example, in Semtek, the Supreme Court held that federal rather than state law controls the preclusive effect that a state court must give a federal diversity judgment. 531 U.S. at 508. While this result may well be correct, in the course of reaching it, the Supreme Court did not identify, much less resolve, the tension between this holding and the general rule of non-displacement. Another example is the adequate and independent state grounds doctrine. The doctrine, which is typically characterized as procedural common law, see, e.g., Kermit Roosevelt III, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum. L. Rev. 1888, 1892-93 (2003), indirectly regulates state procedure insofar as it rejects some state procedures as inadequate. Again, the Supreme Court has not reconciled this doctrine with the general rule that federal procedural common law regulates only federal courts. Id. (describing the theoretical confusion surrounding the question whether the Court has the power to displace state judicial procedure).
76. The Court's failure to identify the boundaries of federal procedural common law vis-à-vis the states is not unique; the Court has been equally unclear about the extent of Congress's authority to regulate state judicial procedure. See Anthony J. Bellia, Jr., Federal Regulation of State Court Procedures, 110 Yale L.J. 947, 949 (2001) ("The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years."). In the context of congressional regulation of state judicial procedure, Professor Bellia has drawn from traditional conflict-of-laws principles to conclude that the Tenth Amendment reserves to the states exclusive control over judicial enforcement of state law. See id. at 972-73. If he is correct, the Tenth Amendment would not only limit the ability of Congress to regulate state judicial procedure, but it would also limit the ability of federal courts to regulate state judicial procedure. That is not to say, however, that judicial power to regulate state procedure would necessarily be coextensive with that of Congress.
77. Cf. Martin H. Redish, Federal Judicial Independence: Constitutional and Political Perspectives, 46 Mercer L. Rev. 697, 708 (1995) ("[N]o one could seriously doubt that a legislature has the authority to supersede common law rules by appropriate legislative action.").
78. Lawson, supra note 40, at 212-14, 220.
79. David E. Engdahl, Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. Rev. 75, 168 (1999).
80. Id. at 172-73. Cf. Michael M. Martin, Inherent Judicial Power: Flexibility Congress Did Not Write into the Federal Rules of Evidence, 57 Tex. L. Rev. 167, 178-79, 182-84 (1979) (arguing that Congress can prescribe rules of evidence for the federal courts, but federal courts possess the power to supersede those rules if they prefer others). Engdahl also challenges Congress's power to regulate prudential standing doctrine, supra note 61, at 165-66, the choice of appropriate relief, id. at 170-71, burdens of proof, id. at 173, and the time within which cases must be decided, id. at 173-74. Like Gary Lawson, Engdahl argues that the Anti-Injunction Act is unconstitutional. Id. at 169.
81. See Harrison, supra note 40, at 504 ("Congress has substantial authority to legislate concerning the rules of precedent in federal court."); Paulsen, supra note 40 (arguing that Congress can abrogate stare decisis by statute).
82. Paulsen, supra note 40, at 1590, 1591 n.154.
83. Because Congress has not generally imposed onerous procedural regulation on the judiciary, the Supreme Court has had little occasion to address the question of whether particular regulations transgress Congress's authority. It has repeatedly implied, however, that limits exist. See Miller v. French, 530 U.S. 327, 350 (2000) (reserving the question of whether "there could be a time constraint on judicial action that was so severe that it implicated ... separation of powers concerns");
84. Herron v. S. Pac. Co., 283 U.S. 91, 94-95 (1931) (implying that Congress lacks the power to require federal courts to follow state statutes "which would interfere with the appropriate performance of [the function of a federal court]," such as regulations regarding what materials jurors can take into deliberations, whether a jury must answer a special verdict, and whether a judge has recourse to the device of a directed verdict);
85. McDonald v. Pless, 238 U.S. 264, 266 (1915) (questioning whether a statute like the Conformity Act could reach the power of federal courts to regulate the conduct of jurors);
86. Indianapolis & St. Louis R.R. v. Horst, 93 U.S. 291, 300 (1876) (noting that the question of whether Congress could trench upon the powers of a judge in certain matters of judicial administration is "open to doubt");
87. Nudd v. Burrows, 91 U.S. 426, 441-42 (1875) (implying that a statute regulating "[t]he personal administration by the judge of his duties while sitting upon the bench" would raise a constitutional question); see also United States v. Horn, 29 F.3d 754, 760 n.5 (1st Cir. 1994) ("It is not yet settled whether some residuum of the courts' [inherent] power is so integral to the judicial function that it may not be regulated by Congress (or, alternatively, may only be regulated up to a certain point)."). State legislatures have gone further than Congress in their attempts to regulate judicial procedure, and state courts have invalidated some of those attempts as beyond the legislative authority.
88. See A. Leo Levin & Anthony G. Amsterdam, Legislative Control over Judicial Rulemaking: A Problem in Constitutional Revision, 107 U. Pa. L. Rev. 1, 30 (1958) (cataloguing examples).
89. 28 U.S.C. § 2071(a) (2000).
90. Id.
91. Fed. R. Civ. P. 83(b) (emphasis added).
92. Fed. R. App. P. 47(b) (emphasis added).
93. See Burbank, supra note 52, at 773-74 & n.192 (assuming that these rules purport to confer upon federal courts the power to make procedural common law).
94. The Advisory Committee Notes to Federal Rule of Civil Procedure 83(b) reveal that its drafters did not necessarily expect that regulation in a form other than local rules would be in the form of traditional common law doctrine. The Notes refer only to "internal operating procedures, standing orders, and other internal directives." Fed. R. Civ. P. 83.
95. See Burbank, supra note 52, at 773-74.
96. This approach is suggested, though not fleshed out, in some of the literature and case law. See, e.g., Matasar & Bruch, supra note 25, at 1323-25 (drawing an analogy between the substantive and procedural common lawmaking powers of the federal courts); William F. Ryan, Rush to Judgment: A Constitutional Analysis of Time Limits on Judicial Decisions, 77 B.U. L. Rev. 761, 778 (1997) (hypothesizing that procedural common law might be conceptualized as "specialized federal common law," analogous to the other forms of federal common law that survived Erie). This also appears to be the view expressed by the Supreme Court in Semtek, where the Court's approach to the articulation of a common law rule - invocation of a federal interest - resembled the approach it takes when articulating rules within the enclaves of federal common law. See supra note 54 and accompanying text. See also Tidmarsh & Murray, supra note 16, at 594, 610-14 (opining that Semtek effectively added preclusion to the existing enclaves of federal common law).
97. See City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981) ("When Congress has not spoken to a particular issue, however, and when there exists a 'significant conflict between some federal policy or interest and the use of state law,' the Court has found it necessary, in a 'few and restricted' instances, to develop federal common law.") (citations omitted).
98. 23 U.S. (10 Wheat.) 1, 49 (1825). The insistence that the federal government has exclusive control over the procedure of its own courts is presumably the flip side of the principle that each state has nearly exclusive control over its own judicial procedure. See supra note 58 and accompanying text.
99. 23 U.S. at 49-50. See also Fullerton v. Bank of the United States, 26 U.S. (1 Pet.) 604, 607 (1828) (asserting that state legislatures can have no control, direct or indirect, over federal court process). That is not to say, of course, that Congress cannot direct the federal courts to observe state procedure, and Congress has done just that on a number of occasions. For example, the Process and Conformity Acts, described infra Subsection III.B.2, both directed federal courts to apply state procedure. But in that situation, state procedure applies to federal courts by virtue of a federal law, much like the situation in which federal courts choose state law as the operative rule of federal common law. See Beers v. Haughton, 34 U.S. (9 Pet.) 329, 359 (1835) ("The whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress they are obligatory. Beyond this, they have no controlling influence.").
100. See Hanna v. Plumer, 380 U.S. 460, 472 (1964) ("[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts...."). In addition to empowering Congress to make laws "necessary and proper" to the execution of Congress's own enumerated powers, the Sweeping Clause empowers Congress to make laws "necessary and proper for carrying into Execution ... all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. Const, art. I, § 8, cl. 18. By its terms, this portion of the Sweeping Clause enables Congress to make laws carrying into execution the judicial power.
101. See supra note 17 and accompanying text. To be sure, procedural common law would still differ from substantive common law in that it does not - and likely cannot - replace contrary state law.
102. The accompanying text describes the conventional view regarding the balance of congressional and judicial authority in the enclaves of federal common law. Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and The Federal System 735 (5th ed. 2003) ("Federal statutes, of course, prevail over contrary federal common law...."). There have been, however, occasional suggestions that in the areas of admiralty and interstate disputes, the lawmaking authority of the federal courts might exceed that of Congress. See id. at 732-35 & n.5 (noting this argument with respect to admiralty); id. at 738-39 n.11 (noting this argument with respect to interstate disputes). The theory is that because the courts' lawmaking authority in these two areas derives at least in part from jurisdictional grants in Article III, it might be slightly broader than that of Congress. Id; see also Note, From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century, 67 Harv. L. Rev. 1214, 1230-35 (1954) (describing ultimately defeated arguments to this effect in the context of admiralty). If this is the case, there may be at least a narrow slice of the common law of admiralty and interstate disputes, respectively, that Congress cannot abrogate, and it would therefore be incorrect to describe all common lawmaking authority in the traditional enclaves as derivative of or subservient to that of Congress.
103. See City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981) ("Nothing in this process [of common lawmaking] suggests that courts are better suited to develop national policy in areas governed by federal common law than they are in other areas, or that the usual and important concerns of an appropriate division of functions between the Congress and the federal judiciary are inapplicable.").
104. Consider that in Wayman v. Southard, Chief Justice Marshall denied that Congress could delegate to the courts "powers which are strictly and exclusively legislative." 23 U.S. (10 Wheat.) 1, 42-43 (1825). Marshall went on, however, to uphold Congress's delegation to the courts of the authority to promulgate court rules; thus, he necessarily viewed authority over procedure as a matter over which Congress and the courts share authority. Id. at 43.
105. See supra notes 59-65 and accompanying text.
106. Similarly, if one were to take the view that judicial power exceeds congressional power in the areas of admiralty and interstate disputes, see supra note 79, one would emphasize that judicial power in these areas arises from a combination of structural inference and jurisdictional grant, rather than from structural inference alone.
107. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) ("Certain implied powers must necessarily result to our Courts of justice from the nature of their institution.... To fine for contempt-imprison for contumacy-inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others....").
108. See Thomas v. Arn, 474 U.S. 140, 148 (1985) (asserting that procedural rules adopted pursuant to inherent authority cannot conflict with statutory or constitutional provisions).
109. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873).
110. Michaelson v. United States, 266 U.S. 42, 65-66 (1924) (acknowledging congressional power to regulate judicial contempt power but asserting that "the attributes which inhere in that power and are inseparable from it can neither be abrogated nor rendered practically inoperative").
111. As others have observed, see, e.g., Stephen B. Burbank, Procedure, Politics, and Power: The Role of Congress, 79 Notre Dame L. Rev. 1677, 1681 (2004), the cases and scholarship often fail to distinguish between initiating authority (the ability to act in the absence of congressional regulation) and exclusive authority (the ability to act in the face of contrary congressional direction); between authority that is local (empowering a court to regulate the proceedings before it) and authority that is supervisory (empowering a court to regulate the proceedings of a lower court); and between procedural regulation in the form of court rules and procedural regulation in the form of judicial decisions. In light of the uncertainty that often surrounds this issue, let me be clear here: both this Section and the next Part are concerned with the question of whether the judiciary possesses an initiating, local authority to regulate procedure in the form of judicial decisions.
112. See, e.g., Thomas, 474 U.S. at 146 ("[C]ourts of appeals have supervisory powers that permit, at the least, the promulgation of procedural rules governing the management of litigation."); United States v. Hasting, 461 U.S. 499, 505 (1983) ("[I]n the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress."); Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981) (asserting supervisory authority to adopt a rule requiring certain questions to be asked on voir dire); United States v. Nobles, 422 U.S. 225, 231 (1975) (acknowledging the judiciary's inherent power to adopt rules regarding discovery in criminal cases); Barker v. Wingo, 407 U.S. 514, 530 n.29 (1972) (acknowledging supervisory power of a federal court to adopt a rule governing the time in which cases must be brought); Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) (asserting authority to prescribe a rule regulating qualifications for jury service in the absence of congressional or constitutional authorization); McNabb v. United States, 318 U.S. 332, 340-41 (1943) (holding that the Court has inherent supervisory power to fashion rules of evidence). Courts asserting "supervisory power" sometimes use it to refer to a court's authority over its own proceedings and sometimes use it to refer to a court's authority to supervise the proceedings of inferior courts. See Barrett, supra note 7, at 330 (describing varied use of term). The cases cited here are of both sorts. For present purposes, I am not concerned with whether a federal court adopts a rule for itself or a lower court but rather with the variety of topics that courts have claimed the inherent authority to regulate.
113. See, e.g., Hanna v. Plumer, 380 U.S. 460, 472-73 (1965) (identifying '"matters which relate to the administration of legal proceedings, [as] an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Rules'" (quoting Lumbermen's Mutual Casualty Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)));
114. Funk v. United States, 290 U.S. 371, 382 (1933) (asserting that courts, "by right of their own powers," can formulate rules of evidence); In re Hien, 166 U.S. 432, 436-37 (1897) ("The general rule undoubtedly is that courts of justice possess the inherent power to make and frame reasonable rules not conflicting with express statute....");
115. Mitchell v. Overman, 103 U.S. 62, 64 (1880) (referring to the "rules of practice which obtain in courts of justice in virtue of the inherent power they possess");
116. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861) ("[I]n all cases where original jurisdiction is given by the Constitution, this court has authority to exercise it without any further act of Congress to regulate its process....").
117. See, e.g., Clinton v. Jones, 520 U.S. 681, 706 (1997) ("The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.");
118. Melkonyan v. Sullivan, 501 U.S. 89, 101 (1991) ("[Normally courts have inherent power, among other things, to remand cases...."); Luce v. United States, 469 U.S. 38, 41 n.4 (1984) ("Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.");
119. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) ("[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy....");
120. Enelow v. N.Y. Life Ins. Co., 293 U.S. 379, 381-82 (1935) (asserting that a federal court can stay proceedings "by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice");
121. Ex parte Peterson, 253 U.S. 300, 312 (1920) ("Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.");
122. Logan v. Patrick, 9 U.S. (5 Cranch) 288, 288-89 (1809) (recognizing equitable discretion to stay proceedings).
123. See, e.g., Barrett, supra note 7, at 334-35; Beale, supra note 22, at 1468-73 (asserting that federal courts have implied constitutional authority to regulate procedure); Engdahl, supra note 61, at 83-86 (arguing that Article III's vesting of judicial power vests courts with power over, inter alia, procedure); Merrill, supra note 24, at 24 (asserting that courts have inherent authority to adopt procedures for themselves in the absence of congressional authorization).
124. See, e.g., Barrett, supra note 7, at 335.
125. The first case to recognize explicitly the inherent authority of federal courts is United States v. Hudson & Goodwin, which asserted in dicta that federal courts possess inherent authority to punish contempt. 11 U.S. (7 Cranch) 32, 34 (1812). The federal courts have consistently reasserted that authority. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 & n.7 (1987) (collecting cases recognizing inherent judicial authority to punish contempt).
126. See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944).
127. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962).
128. See, e.g., Chambers v. NASCO, 501 U.S. 32, 46-51 (1991) (holding that federal courts possess inherent authority to shift attorneys' fees for bad-faith conduct);
129. Roadway Express v. Piper, 447 U.S. 752, 766 (1980) (holding that a court has inherent power to shift attorney's fees as a sanction for failing to comply with discovery orders and a court-ordered briefing schedule).
130. For the regulation of jurors, see, for example, McDonald v. Pless, 238 U.S. 264, 266 (1915) (asserting inherent power of court "to inquire into the conduct of jurors"),
131. and Nudd v. Burrows, 91 U.S. 426, 441-42 (1875) (asserting inherent authority to decide what materials jurors may take into deliberations). For the regulation of lawyers, see, for example,
132. In re Snyder, 472 U.S. 634, 643 (1985) ("Courts have long recognized an inherent authority to suspend or disbar lawyers."),
133. and Exparte Wall, 107 U.S. 265, 273 (1883) ("It is laid down in all the books in which the subject is treated, that a court has power to exercise summary jurisdiction over its attorneys....").
134. The clearest assertions of the inherent authority to prescribe procedural regulations in the course of adjudication are also fairly recent. Most cases asserting inherent procedural authority occur in the context of the "supervisory power" doctrine, which dates to 1943. See McNabb v. United States, 318 U.S. 332 (1943) (first articulating the doctrine). There are few cases directly asserting inherent authority to prescribe procedure outside this line of authority.
135. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 229 (1821).
136. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 243 (2002) (describing wide agreement on this point despite the lack of any explicit textual grant of the power).
137. See supra note 98 and accompanying text.
138. Prakash & Ramsey, supra note 101, at 252-65.
139. Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 Cornell L. Rev. 1, 47-48 (2001).
140. See, e.g., Martin, supra note 62, at 179-82 (describing judicial power over some rules of evidence as "inherent" in the judicial power itself).
141. Cf. Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 825 n.478 (2001) ("Implied constitutional powers must be distinguished from powers that are expressly granted in the Constitution, but not defined.").
142. The Federalist No. 44, at 285 (James Madison) (Clinton Rossiter ed., 1961).
143. 17 U.S. (4 Wheat.) 316, 421 (1819). McCulloch itself did not ground Congress's possession of implied powers exclusively in the Sweeping Clause, although some have argued that it should have done so.
144. See, e.g., William W. Van Alstyne, Implied Powers, in 2 Encyclopedia of the American Constitution 964-65 (Leonard W. Levy et al. eds., 1986). Because McCulloch's argument does not depend upon the Sweeping Clause, its reasoning appears to extend to the executive and judicial branches, which, like Congress, impliedly possess the power to employ means directed toward achieving the ends with which they are charged.
145. See, e.g., Patricia L. Bellia, Executive Power in Youngstown's Shadows, 19 Const. Comment. 87, 91 n.17 (2002) (using term broadly to refer to powers either implicit in specific constitutional grants or inferred from the constitutional structure).
146. See, e.g., Beale, supra note 22, at 1468-73 (using term "implied authority" to refer only to the ancillary authority the Constitution affords each branch to employ means directed toward accomplishing the ends with which it is expressly charged).
147. See generally Prakash & Ramsey, supra note 101.
148. Some cases strongly imply that Article III directly vests the contempt power in every federal court. See, e.g., Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873) ("The power to punish for contempts is inherent in all courts.... The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power."). Others treat the power as instrumental. See, e.g., Eash v. Riggins Trucking, Inc., 757 F.2d 557, 562-63 (3d Cir. 1985) (suggesting that the contempt power is one implied from "strict functional necessity"). Still others invoke both grounds. See infra note 113 and accompanying text.
149. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) ("Certain implied powers must necessarily result to our Courts of justice from the nature of their institution.... To fine for contempt - imprison for contumacy - inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others...."). It is important to emphasize, however, that powers thought "necessary" to the exercise of expressly granted power are not always closely associated with the power they support. For example, the Supreme Court has held that Congress possesses the power to punish contempt, but it has not done so on the ground that such power has long been considered an inherent attribute of any legislature worthy of the name. Instead, the Court has recognized a congressional contempt power on the purely instrumental rationale that in some situations Congress cannot accomplish its job without the ability to punish contempt. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 225-26 (1821) (justifying congressional contempt power on the ground that every express grant of power in the Constitution "draw[s] after it others, not expressed, but vital to their exercise").
150. See, e.g., Engdahl, supra note 61, at 81-89 (characterizing power over procedure, among other inherent powers, as directly vested in federal courts by virtue of Article III); Idleman, supra note 104, at 47-52 (strongly implying that inherent judicial power, including inherent power over procedure, derives directly from Article III's grant of judicial power); Martin, supra note 62, at 179-86 (arguing that judicial power to develop at least some rules of evidence is directly conferred by Article III as an inherent attribute of judicial power);
151. Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805, 1805 (1995) (characterizing inherent judicial power, including inherent procedural power, as "that inher[ing] in the very nature of a judicial body").
152. See, e.g., Beale, supra note 22, at 1466-73 (explicitly rejecting argument that Article III directly infuses federal courts with inherent procedural authority in favor of argument that authority is indirectly conferred as instrumentally useful to the discharge of the judicial function); Pushaw, supra note 106, at 846-47 & n.576 ("In my opinion, the function of deciding cases should be treated as the express 'judicial power' conferred by Article III. What the Court calls 'inherent powers' are the implied ones that flow from the exercise of judicial power.");
153. William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, Law & Contemp. Probs., Spring 1976, at 102, 107-11 (treating judicial authority over procedure as an incidental power implied by necessity without addressing the direct vesting argument).
154. The cases in which federal courts broadly claim "inherent authority" over procedure without specifying the constitutional argument supporting that claim are legion. For just a few examples, see Calderon v. Thompson, 523 U.S. 538, 549-50 (1998),
155. United States v. Hasting, 461 U.S. 499, 505-07 (1983),
156. and Hanna v. Plumer, 380 U.S. 460, 472-73 (1965). See also Lear, supra note 35, at 1159-66 (using both the terms "inherent" and "implied" to describe the federal courts' power to create procedural devices and failing to specify whether power is directly or indirectly conferred); Ryan, supra note 73, at 776 (similar).
157. Hudson, the flagship case regarding inherent judicial authority, illustrates the point nicely. Because the case describes the federal courts' contempt power as arising "from the nature of their institution," 11 U.S. (7 Cranch) at 34, one might read the case as supporting the notion that Article III vests the contempt power directly in all federal courts simply by denominating them "courts" in possession of "judicial Power." On the other hand, Hudson also points out that contempt is a power "necessary to the exercise of all others." Id. That observation might be read simply as support for the "direct vesting" argument, or it might be read as support for the argument that the judiciary, like the other two branches, can employ the means necessary to get its job done.
158. See supra note 104 and accompanying text.
159. See Missouri v. Jenkins, 515 U.S. 70, 124 (1995) (Thomas, J., concurring) ("As with any inherent judicial power ... we should exercise [the Court's remedial powers] in a manner consistent with our history and traditions.");
160. Chambers v. NASCO, 501 U.S. 32, 58 (1991) (Scalia, J., dissenting) (explaining that once established, Article III courts have "the authority to do what courts have traditionally done in order to accomplish their assigned tasks");
161. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252-57 (1891) (rejecting claim that federal courts possess inherent authority to order medical exams of plaintiffs on the ground that such authority has never been claimed by common law courts); see also Idleman, supra note 104, at 49 ("[T]he first criterion [in evaluating a claim to inherent authority] is whether a given power is one that courts, within the Anglo-American judicial tradition, have historically possessed."); Pushaw, supra note 106, at 741 (contending that the arsenal of implied judicial powers is limited to those "rooted in historical Anglo-American practice").
162. To be sure, one might want to see stronger historical evidence before concluding that power is implicitly contained within the grant of "the judicial Power" than one would before concluding that a power is one traditionally exercised by courts. In evaluating the historical evidence, Section III.C accounts for this.
163. I reached this conclusion after reviewing The Records of the Federal Convention of 1787 (Max Farrand ed., 1911),
164. The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)
165. [hereinafter Elliot's Debates], The Federalist Papers, supra note 107,
166. and The Complete Anti-Federalist (Herbert J. Storing ed., 1981).
167. See, e.g., Thomas M'Kean, Speech in the Pennsylvania Ratifying Convention (Dec. 11, 1787), in 2 Elliot's Debates, supra note 121, at 539-40 (defending provision); James Wilson, Speech in the Pennsylvania Ratifying Convention (Dec. 11, 1787), in 2 Elliot's Debates, supra note 121, at 518-19 (identifying issue as contentious); Edmund Pendleton, Speech in the Virginia Ratifying Convention (June 18, 1788), in 3 Elliot's Debates, supra note 121, at 519-20 (reflecting concern in Virginia legislature about appellate review as to law and fact); Editorial, The Impartial Examiner, Va. Indep. Exam'r (Richmond), Feb. 27, 1788 ("Or what is an appeal to enquire into facts after a solemn adjudication in any court below, but a trial de novo?").
168. See, e.g., The Federalist No. 83 (Alexander Hamilton), supra note 107, at 495 (identifying this objection to the Constitution as the one "which has met with most success in [New York], and perhaps in several of the other States"); The Impartial Examiner, supra note 122 ("[C]onsider whether you will not be in danger of losing this inestimable mode of trial in all those cases, wherein the constitution does not provide for its security.").
169. For example, in addressing fears that the proposed Constitution abolished trial by jury in civil cases, James Wilson assured the citizens of Philadelphia that "no danger could possibly ensue," despite the Constitution's silence on the question, "since the proceedings of the supreme court are to be regulated by the congress." James Wilson, Speech on the Federal Constitution, Delivered in Philadelphia (Oct. 6, 1787), in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787-1788, at 157 (Paul Leicester Ford ed., 1888);
170. see also Abraham Holmes, Speech in the Massachusetts Ratifying Convention (Jan. 30, 1788), in 2 Elliot's Debates, supra note 121, at 111 (lamenting that the Constitution, in failing to specify certain rules of procedure and evidence in criminal cases, left Congress virtually unchecked power to prescribe such rules);
171. James Madison, Speech in the Virginia Ratifying Convention (June 20, 1788), in 3 Elliot's Debates, supra note 121, at 534 (referring to Congress's power to "prescribe such a mode as will secure the privilege of jury trial");
172. Patrick Henry, Speeches in the Virginia Ratifying Convention (June 20, 1788; June 23, 1788), in 3 Elliot's Debates, supra note 121, at 544-45, 577-78 (asserting that in civil cases, it would be up to Congress to decide whether a jury trial was guaranteed);
173. William Maclaine, Speech in the North Carolina Ratifying Convention (July 29, 1788), in 4 Elliot's Debates, supra note 121, at 175-76 (referring to Congress's power to prescribe the mode of proceeding in inferior federal courts, including the mode by which trial by jury in civil cases would be had); The Federalist No. 83 (Alexander Hamilton), supra note 107, at 496 (asserting that Congress possessed "a power to prescribe the mode of trial," and that consequently the constitutional silence with respect to juries in civil cases left Congress "at liberty either to adopt that institution or to let it alone").
174. Professor Robert Pushaw has asserted that Edmund Pendleton made remarks during the ratification debates reflecting the belief that federal courts possessed some inherent authority over procedure. Pushaw, supra note 106, at 833 n.518. The basis for this suggestion is Pendleton's observation that inferior courts would decide questions regarding the admissibility of evidence and the competency of witnesses.
175. See Edmund Pendleton, Speech in the Virginia Ratifying Convention (June 18, 1788), in 3 Elliot's Debates, supra note 121, at 519-20. In my judgment, these remarks do not bear on any belief Pendleton may have had regarding the inherent procedural authority of courts. Pendleton made these comments in the course of allaying fears that the Supreme Court's jurisdiction both "as to law and to fact" would permit the Supreme Court to retry cases at the appellate level, thereby forcing citizens to travel, often great distances, to litigate in the Supreme Court itself. See id. at 517-21. His assertion that inferior courts would decide whether to admit evidence was intended to underscore that inferior courts, rather than reviewing courts, made such determinations and that this well-established division of authority, combined with Congress's power to make exceptions and regulations to the Supreme Court's appellate jurisdiction, would render "appeals, as to law and fact, proper, and perfectly inoffensive." Id. at 520. Pendleton did not indicate what standards inferior courts would apply in making these evidentiary determinations, and his remarks are as consistent with a belief that inferior courts would make these evidentiary determinations according to the common law or legislation as they are with a belief that inferior courts would make these evidentiary determinations according to standards established pursuant to their own inherent authority.
176. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
177. Process Act of 1789, ch. 21, 1 Stat. 93.
178. Process Act of 1792, ch. 36, 1 Stat. 275.
179. Judiciary Act of 1793, ch. 22, 2 Stat. 333.
180. In addition to the two provisions discussed in the text, there were numerous other provisions that regulated federal court procedure. For just a few examples, see Judiciary Act of 1789, ch. 20, § 15, 1 Stat. 73, 82 (granting all federal courts the power "to require the parties to produce books or writings in their possession or power, which contain [pertinent] evidence"); § 30, 1 Stat, at 88 (authorizing depositions "de bene esse"); Process Act of 1789, ch. 21, § 1, 1 Stat. 93, 93 (providing that all writs and process issuing from a federal court "shall be under the seal of the court from whence they issue").
181. Judiciary Act of 1789, ch. 20, § 17, 1 Stat. 73, 83.
182. Process Act of 1789, ch. 21, § 2, 1 Stat. 93, 93-94. The phrase "modes of process" could have been interpreted to oblige federal courts to mimic only the form of the processes issuing from the court. From the start, however, federal courts interpreted the Process Act to oblige them to mimic state courts not only in the form of the processes they issued but also in the procedures they employed.
183. See Julius Goebel, Jr., Antecedents and Beginnings to 1801, at 514, 575 (1971). In 1792, Congress amended the Process Act to make this understanding explicit: the 1792 amendment to that Act substituted the phrase "modes of proceeding" for the arguably narrower phrase "modes of process." See Process Act of 1792, ch. 36, 1 Stat. 275, 276.
184. The 1793 amendment to § 17 of the original Judiciary Act made the grant of rulemaking authority more detailed, thereby arguably strengthening it. The amendment granted federal courts the power
185. to make rules and orders for their respective courts directing the returning of writs and processes, the filing of declarations and other pleadings, the taking of rules, the entering and making up judgments by default, and other matters in the vacation and otherwise in a manner not repugnant to the laws of the United States, to regulate the practice of the said courts respectively, as shall be fit and necessary for the advancement of justice.
186. Judiciary Act of 1793, ch. 22, § 7, 2 Stat. 333, 335. The 1792 Process Act repealed the Process Act of 1789, which had been temporary, and replaced it with a substantially similar, but permanent, statute. The new act deleted the original Process Act's reference to the civil law and directed federal courts to follow the "principles, rules and usages which belong to courts of equity and to courts of admiralty respectively," and it rendered all of the Act's instructions "subject however to such alterations and additions as the said courts respectively shall in their discretion deem expedient." Process Act of 1792, ch. 36, § 2, 1 Stat. 275, 276. It is not clear whether the latter proviso simply extended the scope of the federal courts' authority to adopt rules under § 17 or whether it functions itself as a rulemaking grant.
187. Professor Julius Goebel notes that the first Congress gave the federal courts "only a few directions relating to [criminal] procedure"; he observes that the first federal criminal statute "was drawn on the assumption that common law methods of trial would be followed." Goebel, supra note 132, at 609.
188. The same was true with respect to rules of evidence in criminal cases. The Supreme Court construed the Rules of Decision Act as inapplicable to criminal cases, and for over sixty years, federal courts observed common law rules of evidence rather than modifications to the common law adopted by any particular state. See Barrett, supra note 7, at 375 & n.197. In 1851, the Supreme Court changed this practice by construing the Judiciary Act of 1789 as implicitly requiring, in criminal cases, adherence to state evidence law, as that law existed on the date of the state's admission to the Union. Id.
189. The first three volumes of the Annals of Congress cover the enactment of all four of these statutes. A review of those volumes revealed no discussion about the inherent authority of the federal courts (or lack thereof). Nor did the inherent authority (or lack thereof) of federal courts over procedure appear to be a topic of debate among informed onlookers of the time. See generally 4 The Documentary History of the Supreme Court of the United States, 1789-1800 (Maeva Marcus ed., 1992) [hereinafter Documentary History] (collecting letters, diary and journal entries, newspaper items, and notes of speeches and debates that cast light upon the enactment of the Judiciary and Process Acts of 1789); Goebel, supra note 132, at 457-551 (describing history of Judiciary and Process Acts of 1789). It must be acknowledged, however, that claiming a negative here (that is, that the inherent power was not discussed) is complicated by the fact that the records from this period, particularly of debates in the Senate, are not complete. The Annals of Congress were reconstructed in the 1820s-40s based on contemporary newspaper accounts of coverage of the House. Because the Senate did not allow reporters to observe its proceedings until February 20, 1794, the only records of its proceedings in the first two Congresses and part of the third are the official journal (which consists of roll calls and parliamentary entries) and individual Senators' notes. Thus, as a general matter, the lack of discussion regarding inherent power in the House during this period is more meaningful than the similar silence in the Senate.
190. The contempt power was clearly treated as one inherent in all courts. See infra note 158 and accompanying text. There is less evidence regarding the powers to grant new trials and to administer oaths, but state cases offer reason to believe that both of these powers were thought to be inherent as well. See infra note 169 (new trials); see also Prentiss v. Gray, 4 H. & J. 192, 197 (Md. 1816) ("Courts of justice have essentially, and as appertaining to their very nature, authority to administer oaths in all cases of which they have jurisdiction."); Montgomery v. Snodgrass, 2 Yeates 230, 231-32 (Pa. 1797) ("[W]e disclaim all affinity whatever to that [Board of Property]; they are no court in any sense of the word; they are not vested with the powers essentially necessary to such a tribunal; they can neither administer an oath, enforce the attendance of witnesses, nor punish contempts....") (emphasis added).
191. It is worth noting that the congressional record surrounding the adoption of the Judiciary and Process Acts is silent with respect to more than just inherent judicial authority over procedure. Legislators never discussed inherent judicial authority of any sort, including well-established inherent authority like the authority to punish contempt of court.
192. See Goebel, supra note 132, at 510-37 (describing Judiciary Committee's proposal to regulate federal procedure in detail and Senate's rejection of it). As the struggle between those who favored uniform federal procedure and those who favored state procedure suggests, it was the interests of the states relative to the federal government, rather than the interests of federal courts relative to Congress, that occupied legislative attention. Id. at 510-11, 539-40 (arguing that the legislative history of the Process Act reveals a struggle between those who favored a consolidated national government and those who favored resting more control with the states).
193. 1 Annals of Cong. 1141-43 (Joseph Gales ed., 1834).
194. Goebel, supra note 132, at 549-51. The Senate rejected the proposal.
195. Edmund Randolph, Report of the Attorney-General to the House of Representatives (Dec. 27, 1790), in 4 Documentary History, supra note 136, at 127-67.
196. Id. at 122.
197. Id. at 151-53, 166.
198. Id. at 151.
199. Id. at 166.
200. Id. at 122.
201. 1 William Tidd, The Practice of the Court of King's Bench in Personal Actions, at xi-xii (London, E. Brooke et al., 2d ed. 1799). The first edition of Tidd's treatise was published in two parts, with the first part appearing in 1790 and the second in 1794. The Oxford Dictionary of National Biography observes that "[f]or a long period it was almost the sole authority for common-law practice, going through nine editions by 1828.... The work was also extensively used in America, where one edition with notes by Asa I. Fish appeared as late as 1856."
202. E.I. Carlyle & Jonathan Harris, Tidd, William, in 54 Oxford Dictionary of National Biography 763 (H.C.G. Matthew & Brian Harrison eds., 2004).
203. 3 Joseph Story, Commentaries on the Constitution of the United States § 1752 (Boston, Hilliard, Gray, & Company 1833).
204. In addition to Tidd's Practice and Story's Commentaries, I reviewed the following treatises, all of which were silent on the question whether federal courts possess inherent authority to regulate procedure: Alfred Conkling, A Treatise on the Organization, Jurisdiction and Practice of the Courts of the United States (Albany, Wm. & A. Gould & Co. 1831);
205. Nathan Dane, A General Abridgment and Digest of American Law (Boston, Cummings, Hilliard & Co. 1823);
206. Peter S. Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (Phila., Abraham Small 1824);
207. David Hoffman, A Course of Legal Study (Bait., Coale & Maxwell 1817);
208. James Kent, Commentaries on American Law (N.Y., O. Halsted 1826);
209. Thomas Sergeant, Constitutional Law (Phila., P.H. Nicklin & T. Johnson, 2d ed. 1830);
210. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Common-wealth of Virginia (St. George Tucker ed., Phila., William Young Birch & Abraham Small 1803);
211. James Wilson, The Works of the Honourable James Wilson (Phila., Lorenzo Press 1804). I also consulted the following secondary sources: Goebel, supra note 132;
212. George Lee Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15 (1981);
213. Robert Wyness Millar, Civil Procedure of the Trial Court in Historical Perspective (1952);
214. William E. Nelson, Americanization of the Common Law, 1760-1830 (1975);
215. Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky 1789-1816 (1978);
216. 3-4 G. Edward White, The Marshall Court and Cultural Change, 1815-35 (1988).
217. 1 Tidd, supra note 148, at xi; see also id. at xii ("[A]s questions arise respecting the regularity of the proceedings, the courts are called upon to settle, by judicial decisions, the course of their own practice, or to fix the construction of the rules or acts of parliament which have been made respecting it.").
218. The Civil Procedure Act of 1833 contained the first parliamentary grant of rule-making power to judges. R.J. Walker & M.G. Walker, The English Legal System 26 (2d ed. 1970). Walker and Walker note that "[b]efore the nineteenth century each court regulated its own internal procedure with very little intervention by Parliament." Id. at 60. See also Millar, supra note 150, at 27 (asserting that English procedure historically derived from the courts rather than from any legislative source); Samuel Rosenbaum, The Rule-Making Authority in the English Supreme Court 4 & n.8 (1917) (describing English civil procedure as entirely judge-made until the Civil Procedure Act of 1833). The same, incidentally, is true of English criminal procedure, which judges developed with very little parliamentary oversight until the midnineteenth century. See David Bentley, English Criminal Justice in the Nineteenth Century 1, 19, 22, 297 (1998) (noting that the "overwhelming majority" of criminal defendants were tried summarily and that procedure upon such prosecutions was wholly at the magistrate's discretion until at least 1848); Patrick Devlin, The Criminal Prosecution in England 11-13, 28, 38, 42-45 (1958) (describing English criminal procedure as developed entirely at the instigation of courts themselves).
219. 3 Story, supra note 149, § 1752 (emphasis added).
220. Id. § 1768; see also Sergeant, supra note 150, at 29 (similarly identifying a court's power over its own officers and its power to punish contempt as incidental powers, and similarly failing to include power over procedure on the list).
221. See, e.g., Sears v. United States, 21 F. Cas. 938, 938-39 (Story, Circuit Justice, C.C.D. Mass. 1812) (No. 12, 592) (relying on common law to establish the authority of the court to amend a variance).
222. 1 employed the following method of gathering the relevant cases. My research assistant culled all the cases from the Federal Cases reporter that satisfied the criteria; I did the same for the Supreme Court reporter. We then categorized the cases into the following categories: admiralty, equity, civil procedure, criminal procedure, and evidence. I read all of the cases in each of these categories to determine how the early federal courts treated the regulation of procedure, particularly in the absence of legislative guidance. In addition to reading the cases reported in the Supreme Court reporter, I also reviewed The Documentary History of the Supreme Court of the United States, 1789-1800, an eight-volume set collecting documents regarding the business of the Supreme Court, as well as its justices riding circuit, in that period. 1 Documentary History, supra note 136, at xli-xlii.
223. See, e,g., Forrest v. Hanson, 9 F. Cas. 455, 455 (C.C.D.C. 1801) (No. 4942) (suggesting that the powers of courts can derive from either statutes or from "principle[s] of the common law, extending, generally, to all judicial bodies"). Of course, early federal courts did not only address the authority they claimed. They also addressed an inherent authority they ultimately-and famously-disclaimed: inherent jurisdictional authority. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) (denying that the exercise of criminal jurisdiction is within the powers implied in all courts "from the nature of their institution"); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93-94 (1807) (denying that the authority to issue writs of habeas corpus is inherent in every court). Contra id. at 79-80 (argument of counsel) (asserting that federal courts do possess inherent authority to issue writs of habeas corpus).
224. See, e.g., Hudson, 11 U.S. (7 Cranch) at 34; United States v. Duane, 25 F. Cas. 920, 922 (C.C.D. Pa. 1801) (No. 14, 997) (claiming that, in holding defendant in contempt, "[w]e confine ourselves within the ancient limits of the law, recently retraced by legislative provisions and judicial decisions"); Hollingsworth v. Duane, 12 F. Cas. 359, 363-64 (C.C.D. Pa. 1801) (No. 6616) (argument of counsel). State courts similarly asserted inherent authority to punish contempt. See, e.g., State v. Johnson, 3 S.C.L. (1 Brev.) 155, 158 (S.C. 1802) (per curiam) ("Justices of peace have a power derived from the common law, and necessarily attached to their offices, of committing and confining for gross misbehaviour in their presence....").
225. See, e.g., King of Spain v. Oliver, 14 F. Cas. 577, 578 (C.C.D. Pa. 1810) (No. 7814) (characterizing the right to inquire by what authority an attorney acted on his purported client's behalf as one "inherent in all courts," but acknowledging that this inherent power "may be taken away, or qualified by express statute; or additional cautions may be superadded"). State courts similarly asserted authority over court personnel. See, e.g., Yates v. New York, 6 Johns. 337, 372-73 (N.Y. 1810) (argument of counsel) (asserting that courts, including chancery courts, possess inherent authority to direct and control court officers, including clerks, in the discharge of their functions); Mockey v. Grey, 2 Johns. 192, 192 (N.Y. 1807) ("The power of appointing a guardian, ad litem, is incident to every court....").
226. See, e.g., United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (explaining that "the law has invested Courts of justice with the authority to discharge a jury from giving any verdict" when justice requires it); United States v. Coolidge, 25 F. Cas. 622, 623 (Story, Circuit Justice, C.C.D. Mass. 1815) (No. 14, 858) (asserting the power to withdraw a juror if, while a party is on trial before a jury, something occurs that "will occasion a total failure of justice if the trial proceed"); Offutt v. Parrott, 18 F. Cas. 606, 607 (C.C.D.C. 1803) (No. 10, 453) (fining jurors who escaped from the jury room out the window). State courts asserted similar authority. See, e.g., Commonwealth v. Bowden, 9 Mass. (9 Tyng) 494, 495 (1813) (recognizing inherent authority of a court to withdraw a juror); Alexander v. Jameson, 5 Binn. 238, 242-43 (Pa. 1812) (asserting inherent authority of a court to regulate what jurors take into the jury room).
227. See Barrett, supra note 7, at 376-84.
228. Conkling, supra note 150, at 317; accord id. at 233 (explaining that his treatise would not detail the formal parts of the declaration because "[t]he common rules of pleading, except where they have been changed by the laws of the states or by rules of court are in general strictly applicable to proceedings in the national courts," and the rules of common law pleading are adequately explained in other treatises). Professor Mary Tachau's study of the Kentucky federal courts from 1789-1816 led her to conclude that "[t]he most distinctive aspect" of the procedures observed by Kentucky federal courts in this period "was their rigorous adherence to the antiquated technicalities of English law." Tachau, supra note 150, at 77. Throughout, Tachau details examples of this phenomenon. See, e.g., id. at 84 (relating district judge's admonishment that "[t]he Latitude contended for by Mr. Attorney goes at once to destroy that System of Good pleading which has stood the test for Ages past and which I hope will continue to be strictly attended to by Judges").
229. 1 Blackstone's Commentaries, supra note 150, app. at 429; see also 1 Kent, supra note 150, at 320 ("If congress should by law authorize the district or circuit courts to take cognizance of attempts to bribe an officer of the government... and should make no further provision, the courts would, of course, in the description, definition, prosecution, and punishment of the offence, be bound to follow those general principles and usages, which are not repugnant to the constitution and laws of the United States, and which constitute the common law of the land, and form the basis of all American jurisprudence.").
230. See, e.g., Tatum v. Lofton, 23 F. Cas. 723, 723-24 (C.C.D. Tenn. 1812) (No. 13, 766) (treating common law as controlling the question of whether a witness who voluntarily gained an interest in litigation can rely on that interest as grounds for refusing to testify); Livingston v. Jefferson, 15 F. Cas. 660, 664-65 (Marshall, Circuit Justice, C.C.D. Va. 1811) (No. 8411) (asserting that the common law, including procedural common law, applies in federal courts unless Congress says otherwise); United States v. Johns, 4 U.S. (4 Dall.) 412, 414, 26 F. Cas. 616, 617 (Washington, Circuit Justice, C.C.D. Pa. 1806) (No. 15, 481) (holding that in the absence of contrary instruction from Congress, the number of peremptory challenges permitted in a capital case was a matter governed by the common law, which permitted thirty-five); Owens v. Adams, 18 F. Cas. 926, 926 (Marshall, Circuit Justice, C.C.D. Va. 1803) (No. 10, 633) (holding that in the absence of any legislative provision, "the rules of the common law" controlled questions regarding the admissibility of evidence, despite the court's disagreement with the application of the rule in this instance).
231. Judiciary Act of 1789, ch. 20, § 17, 1 Stat. 73, 83.
232. In Fullerton v. Bank of the United States, the Supreme Court rejected a challenge to establishing rules through adjudication. 26 U.S. (1 Pet.) 604, 613-15 (1828). It noted:
233. Written rules are unquestionably to be preferred, because their commencement, and their action, and their meaning, are most conveniently determined; but what want of certainty can there be, where a Court by long acquiescence has established it to be the law of that Court, that the state practice shall be their practice ....
234. Id. at 613; accord Duncan's Heirs v. United States, 32 U.S. (7 Pet.) 435, 451 (1833) ("It is not essential that any court in establishing or changing its practice should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding, for a series of years ...."). Although neither Fullerton nor Duncan's Heirs explicitly invoked § 17 of the Judiciary Act in holding that court rules can be established by the common law method, it seems fairly clear in context that the Court was referring to that provision. Even if it was not, however, its failure to draw a sharp distinction in these cases between procedural regulation by court rule and procedural regulation by adjudication makes it less likely that federal courts drew such a distinction for purposes of § 17. See, e.g., Arnold v. Jones, 1 F. Cas. 1180, 1180 (D.S.C. 1798) (No. 559) (explicitly invoking § 17 power to establish a rule, in the course of adjudicating a case, that a motion for a new trial does not suspend judgment after a verdict).
235. See, e.g., Sulivan v. Browne, 23 F. Cas. 348, 348-49 (C.C.D. Pa. 1808) (No. 13, 593) (referring both to a previously established "rule of this court" and to an innovation to that rule allowed in the present case, without any reference to the court's authority to adopt either the initial rule or its temporary suspension); United States v. Burr, 25 F. Cas. 55, 77 (Marshall, Circuit Justice, C.C.D. Va. 1807) (No. 14, 693) (establishing both the questions to be asked and the grounds to be accepted in determining whether to excuse jurors for cause); United States v. Burr, 25 F. Cas. 38, 40-41 (Marshall, Circuit Justice, C.C.D. Va. 1807) (No. 14, 692e) (laying down a rule with respect to the questioning of witnesses); United States v. Stewart, 27 F. Cas. 1338, 1339 (C.C.D. Pa. 1795) (No. 16, 401) (adopting "a rule in this case, and in all other cases of a similar nature" regarding the time allowed criminal defendants to secure the presence of witnesses for trial); Thompson v. Haight, 23 F. Cas. 1039, 1040 (S.D.N.Y. 1820) (No. 13, 956) (laying down rules regarding affidavits in certain patent cases).
236. See, e.g., Patton v. Blackwell, 18 F. Cas. 1336, 1336 (C.C.D. Tenn. 1809) (No. 10, 831) (adopting a rule regarding the imposition of costs in the event of continuance and asserting, without citation, that "[t]his court has the power to establish such rules of practice"); Anonymous, 1 F. Cas. 993, 993 (C.C.D. Conn. 1809) (No. 434) (asserting that "this court was perfectly free to establish a better practice" than the English practice regarding particular affidavits but not identifying the source from which this freedom derived).
237. The courts' failure to distinguish between inherent authority and statutory authority derived from the Judiciary Act causes confusion about the source of several procedural powers. For example, there is evidence that early federal courts believed themselves to possess inherent authority to permit amendments to pleadings. See Sears v. United States, 21 F. Cas. 938, 939 (Story, Circuit Justice, C.C.D. Mass. 1812) (No. 12, 592) (relying on common law to establish the authority of the court to amend a variance);
238. Calloway v. Dobson, 4 F. Cas. 1082, 1083 (Marshall, Circuit Justice, C.C.D. Va. 1807) (No. 2325) (asserting that courts possessed power, both at equity and at common law, to permit amendments of pleadings). But because § 32 of the Judiciary Act gave federal courts statutory authority to do so and because the courts rarely identified the source of their authority, one cannot treat bare amendments as assertions of inherent, as opposed to statutorily granted, authority.
239. See, e.g., Smith v. Barker, 22 F. Cas. 454, 455-56 (C.C.D. Conn. 1809) (No. 13, 013) (asserting discretion of the court to permit the plaintiff to amend at any time before the case is actually committed to the jury);
240. Wigfield v. Dyer, 29 F. Cas. 1156, 1156 (C.C.D.C 1807) (No. 17, 622) (adopting a rule with respect to conditions upon amendment). Another example is the power of the court to grant new trials. One can make a good case that early courts believed themselves to possess inherent authority to grant new trials.
241. See, e.g., Bird v. Bird, 2 Root 411, 413 (Conn. 1796) (asserting that "it is incident to every court, who are authorized to try causes by a jury, to set aside their verdicts for just cause");
242. Inhabitants of Durham v. Inhabitants of Lewiston, 4 Me. 140, 142 (1826) (argument of counsel) (asserting "the inherent power of this court to grant new trials at common law");
243. Charles Edwards, The Juryman's Guide Throughout the State of New York 184 (N.Y., O. Halsted 1831) ("Perhaps the power to grant new trials, for certain just causes ... is necessarily incident to every court that has power to try.");
244. see also Judiciary Act of 1789, ch. 20, § 17, 1 Stat. 73, 83 (authorizing federal courts to grant new trials "for reasons for which new trials have usually been granted in the courts of law"). But because § 17 of the Judiciary Act gave federal courts statutory authority to do so and courts rarely identified the source of their authority, grants of new trials cannot be treated as assertions of inherent authority.
245. See, e.g., Kohne v. Ins. Co. of N. Am., 14 F. Cas. 838, 838-39 (Washington, Circuit Justice, C.C.D. Pa. 1804) (No. 7921) (claiming authority to grant a new trial without identifying its source). Thus, while many cases dealing with amendments and new trials appear at first blush to be assertions of inherent authority, the existence of statutory grants destabilizes that conclusion.
246. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 420 (1793) (argument of counsel).
247. Id. at 426-29. Randolph's arguments in this regard were not met by opposing counsel, as Georgia's lawyers had, per her instructions, declined to argue the case. Id. at 419.
248. Id. at 427.
249. Id.
250. Id. at 428 (describing the Court's authority to devise service of process); see also id. at 429 ("As to the steps, proper for compelling an appearance; these too, not being dictated by law, are in the breast of the Court.").
251. Id. at 480. In contrast to the Court's approach to service of process and the steps for compelling an appearance, the Court's view with respect to its inherent authority to issue a writ of execution is unclear. With respect to the latter, Randolph's claim of inherent authority was made in the alternative. Id. at 426. His primary argument was that the Judiciary Act of 1789 implicitly clothed the Supreme Court with the authority to issue such a writ. Id. Thus, the Supreme Court's issuance of a writ of execution cannot be taken as an implicit endorsement of the proposition that the Court thought itself to possess inherent authority to do it.
252. Id. at 433 (Iredell, J., dissenting).
253. Id. at 432. Interestingly, Justice Iredell grounded his argument in favor of exclusive legislative control in the same constitutional provision relied upon by some modern proponents of exclusive legislative control: the Sweeping Clause. See infra note 197.
254. Chisholm, 2 U.S. at 432 (Iredell, J., dissenting) ("This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the Legislative authority.").
255. Justice Iredell's views in Chisholm were presaged by the notes that he took while Oswald v. New York, 2 U.S. (2 Dall.) 401 (1792), a case between New York and a citizen of another state, was pending before the Court. In reflecting on the case, Iredell denied that Article III empowered the Court to devise "any new mode of proceeding" and emphasized that the power to devise new modes of trial belonged entirely to Congress.
256. James Iredell, Observations on State Suability, in 5 Documentary History, supra note 136, at 76, 84-85. Oswald v. New York was tried by jury before the Supreme Court, and no formal opinion was issued in the case. Oswald v. New York, in 5 Documentary History, supra note 136, at 57, 59-67 (describing background of the case).
257. See, e.g., Hampden, Indep. Chron. (Boston), July 25, 1793, reprinted in 5 Documentary History, supra note 136, at 399, 401 (heatedly arguing that the authority to determine the mode of exercising the judicial power, including the mode of proceeding, belongs exclusively to Congress); The True Federalist to Edmund Randolph, Number V, Indep. Chron. (Boston), Mar. 20, 1794, reprinted in 5 Documentary History, supra note 136, 270-71 (making same argument).
258. It is worth noting that Justice Iredell himself was not entirely consistent in his view about inherent procedural authority. In several cases, he granted continuances even in the absence of statutory authorization to do so. See, e.g., Hurst v. Hurst, 3 U.S. (3 Dall.) 512, 512, 12 F. Cas. 1028, 1028 (Iredell, Circuit Justice, C.C.D. Pa. 1799) (No. 6929); Symes v. Irvine, 2 U.S. (2 Dall.) 383, 384, 23 F. Cas. 591, 592 (Iredell, Circuit Justice, C.C.D. Pa. 1797) (No. 13, 714).
259. Consider that in at least two later original jurisdiction cases, the Court devised forms of process and rules of proceeding in explicit reliance on statutory authority and with no reference to inherent authority. See, e.g., New Jersey v. New York, 30 U.S. (5 Pet.) 284, 287-88 (1831) (relying only on statutory authority); Grayson v. Virginia, 3 U.S. (3 Dall.) 320, 320 (1796) (relying on the Judiciary Act's § 14). But see Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861) (explicitly asserting inherent authority to devise process and rules of proceeding), overruled in other respects by Puerto Rico v. Branstad, 483 U.S. 219 (1987).
260. Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 362 (Johnson, Circuit Justice, C.C.D.S.C. 1808) (No. 5420). He went on to argue that the power to issue a writ of mandamus is a "mode of proceeding" rather than a distinct branch of jurisdiction, and that the power therefore exists even in the absence of a statutory grant. Id. at 363.
261. In contrast to the method I pursued with respect to the federal cases, see supra note 156 and accompanying text, I did not read all of the relevant state cases decided between 1789 and 1820. For this portion of the study, I instead relied on searches in electronic databases.
262. Barry v. Randolph, 3 Binn. 277, 278 (Pa. 1810) (Tilghman, C.J.); accord Boas v. Nagle, 3 Serg. & Rawle 250, 253 (Pa. 1817) (implicitly recognizing inherent power of court to regulate its practice); Vanatta v. Anderson, 3 Binn. 417, 423 (Pa. 1811) (noting that despite the absence of a legislative grant, "it is not denied that [the Courts of Common Pleas] have power from the nature of their constitution, to make rules for the regulation of their practice"); Boyd's Lessee v. Cowan, 4 U.S. (4 Dall.) 138, 140 (Pa. 1794) ("[T]he Court can alter the practice, and institute any rules in an action of ejectment, which they may deem beneficial, or for the furtherance of justice, without legislative aid.").
263. Barry, 3 Binn. at 279 (Yeates, J.).
264. Dubois v. Turner, 4 Yeates 361, 362 (Pa. 1807) (Tilghman, C.J.).
265. See Kennedy's heirs v. Meredith, 6 Ky. (3 Bibb) 465, 466 (1814) ("[C]ourts may adopt rules for the regulation of the practice upon points not provided for by law ...."). Because I was unable to find any statutory grant of procedural authority on the books at this time, I treat this statement as a reference to the court's inherent authority rather than authority legislatively granted. See also Yates v. People, 6 Johns. 337, 372 (N.Y. 1810) (referring in dicta to "the general powers incident to every court of record of regulating its own practice, and prescribing rules in regard to the form of conducting its proceedings"). There is some evidence that the Virginia courts established rules in the absence of legislative authority from 1784 to 1787. See Pushaw, supra note 106, at 821 & n.461. There is also some evidence that colonial courts exercised inherent authority over procedure. See Marilyn L. Geiger, The Administration of Justice in Colonial Maryland, 1632-1689, at 14, 233 (1987) (noting that Maryland colonial courts adopted their own procedures when the Assembly was silent); Paul M. McCain, The County Court in North Carolina Before 1750, at 39 (1954) ("Without a law to specify a definite procedure for the county court the justices generally arranged matters to suit themselves and the people in attendance.").
266. 2 U.S. (2 Dall.) 335, 341-42, 26 F. Cas. 499, 514 (C.C.D. Pa. 1795) (No. 15, 443); see also United States v. Fries, 3 U.S. (3 Dall.) 515, 516, 9 F. Cas. 826, 918 (C.C.D. Pa. 1799) (No. 5126) (argument of counsel).
267. 21 F. Cas. 938, 939 (Story, Circuit Justice, C.C.D. Mass. 1812) (No. 12, 592). Section 32 of the Judiciary Act of 1789 authorized courts to amend a variance that was merely a matter of form. Even if the variance at issue in Sears was within the purview of § 32, the significant point for present purposes is that in establishing his authority to act, Justice Story explicitly invoked the authority that the common law granted to all courts of error rather than § 32.
268. 4 F. Cas. 1082, 1083 (Marshall, Circuit Justice, C.C.D. Va. 1807) (No. 2325). Again, § 32 of the Judiciary Act authorized the court to permit amendments to pleading. The significant point for present purposes is that Justice Marshall did not rely on the statutory grant but instead explicitly invoked the powers possessed by courts of common law and equity.
269. See, e.g., King of Spain v. Oliver, 14 F. Cas. 571, 572 (Washington, Circuit Justice, C.C.D. Pa. 1816) (No. 7812) (denying continuance when party knew that witness was about to depart and made no effort to procure his deposition); United States v. Frink, 25 F. Cas. 1220, 1221 (C.C.D. Conn. 1810) (No. 15, 171) (denying continuance for absent witness when the witness refused to attend); Hurst v. Hurst, 3 U.S. (3 Dall.) 512, 12 F. Cas. 1028 (Iredell, Circuit Justice, C.C.D. Pa. 1799) (No. 6929) (granting continuance when the adverse party refused to answer a bill for discovery); Symes's Lessee v. Irvine, 2 U.S. (2 Dall.) 383, 384, 23 F. Cas. 591, 592 (Iredell, Circuit Justice, C.C.D. Pa. 1797) (No. 13, 714) (granting continuance when witness broke promise to a party to attend the trial). There is some later authority from a state court explicitly casting the right to grant or refuse a continuance as one "inherent in all courts." See Wilson v. Phillips, 5 Ark. 183, 185 (1843); Burriss v. Wise & Hind, 2 Ark. 33, 41 (1839). It is worth noting that the federal courts briefly possessed a statutorily granted power to grant continuances. Among other things, § 15 of the Judiciary Act of 1801 empowered federal courts "to grant continuances on the motion of either party." Judiciary Act of 1801, ch. 4, § 15, 2 Stat. 89, 94. That Act was repealed in its entirety almost exactly one year later on March 8, 1802.
270. See, e.g., Norwood v. Sutton, 18 F. Cas. 458, 458 (C.C.D.C. 1806) (No. 10, 365) (refusing to receive a supplemental affidavit on the ground that it was a practice leading to perjury); Ex parte Johnson, 13 F. Cas. 719, 719 (Washington, Circuit Justice, C.C.D. Pa. 1803) (No. 7366) (requiring United States, rather than the defendant, to pay for attendance of defense witness when the United States was the one to call him).
271. Subsection III.B.4 considered only those cases decided between 1789 and 1820. For examples of later cases asserting inherent procedural authority, see supra notes 89-91 and accompanying text.
272. See supra notes 81-83 and accompanying text.
273. See, e.g., Degen v. United States, 517 U.S. 820, 829 (1996) ("A court's inherent power is limited by the necessity giving rise to its exercise."); Roadway Express v. Piper, 447 U.S. 752, 764 (1980) ("The inherent powers of federal courts are those which 'are necessary to the exercise of all others.'" (quoting United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812))); see also Pushaw, supra note 106, at 741-43, 847-49 (arguing that the judiciary possesses only those instrumental powers that are strictly necessary to the exercise of judicial power, as opposed to those that are merely useful to it); Van Alstyne, supra note 115, at 111 ("Neither the executive nor the judiciary possess any powers not essential (as distinct from those that may be merely helpful or appropriate) to the performance of its enumerated duties as an original matter ....").
274. See Pushaw, supra note 106, at 851 ("Any claim of 'necessity' [to exercise inherent procedural authority] is further weakened by the fact that Congress has delegated to judges a prominent role in drafting adjective laws."); see also Lear, supra note 35, at 1160 ("Few modern forum non conveniens dismissals are necessary for the courts to function.").
275. Independent of Hudson and its progeny, Professor William Van Alstyne has argued that the Sweeping Clause gives Congress the exclusive power to give the executive and the judiciary those powers that are merely beneficial to the exercise of executive and judicial power, thereby limiting any implied powers possessed by the judiciary and the executive to those that are indispensable. See Van Alstyne, supra note 115. Professor Sara Sun Beale has persuasively refuted that argument. See Beale, supra note 22, at 1471-72. In addition, the Supreme Court implicitly rejected a similar argument made by the dissent in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 432-33 (1793). See supra note 177 and accompanying text.
276. 11 U.S. (7 Cranch) 32, 34 (1812) (emphasis added); accord Degen, 517 U.S. at 829 (asserting that inherent power exists only to the extent necessary);
277. Roadway Express, 447 U.S. at 764-65 (similar).
278. See, e.g., Pushaw, supra note 106.
279. In distinguishing the Court's inherent power to punish contempt, an authority it claimed, from the inherent authority to punish common law crimes, an authority it disclaimed, the Court was not responding to an argument of counsel, as both the Attorney General and counsel for the defendants declined to argue the case. Nonetheless, the indictment rendered against Hudson and Goodwin invited that distinction. See Indictment, Hudson, 11 U.S. (7 Cranch) 32 (denouncing defendants for "offending a contempt of the government of the United States against the Peace and dignity of the United States and in violation of the laws thereof (emphasis added)); see also id. (denouncing defendants for inciting in citizens "hatred, contempt, and indignation against the President of the United States and the Congress of the United States" (emphasis added)). The Court's contempt power might have been thought to justify federal jurisdiction over common law crimes on the rationale that if a federal court can punish contempt without statutory authorization, so too can it punish other crimes without statutory authorization. Conversely, a holding that a federal court lacks power to punish common law crimes might have been thought to deny that it possesses power to punish contempt. The "necessity" limit advanced by the Court avoided either result.
280. See, e.g., Degen, 517 U.S. at 829 (holding that district court exceeded the limit of necessity when it struck a defendant's pleadings in a civil forfeiture case on the ground that he remained a fugitive in a related criminal case); Chambers v. NASCO, 501 U.S. 32, 43-46 (1991) (emphasizing necessity in the context of inherent power to sanction misconduct); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 821 (1987) (Scalia, J., concurring) (recognizing, in the context of contempt, the "narrow principle of necessity" that empowers each branch to protect itself); Roadway Express, 447 U.S. at 766 (emphasizing necessity limit in context of recognizing inherent authority of court to shift attorneys' fees as a sanction for misconduct); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873) ("The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts ...." (emphasis added)). The Court also invoked a necessity test in Anderson v. Dunn, where it recognized Congress's power to punish contempt. 19 U.S. (6 Wheat.) 204, 230-31 (1821) (holding that Congress could claim a "punishing power" on the ground of self-preservation only if the power claimed is "the least possible power adequate to the end proposed"). Because it deals with Congress, rather than the courts, Anderson cannot be understood to distinguish contempt from the particular question of common law criminal jurisdiction. It is, however, analogous to Hudson insofar as it sets narrow boundaries on the ability of any branch to impose criminal sanctions without the cooperation of the other branches. Indeed, the special considerations surrounding criminal punishment may well be what distinguish Anderson's limited view of Congress's implied authority from McCulloch's expansive one.
281. The Court has not invoked a necessity standard when describing the inherent authority of a federal court to take docket-control measures. See, e.g., Clinton v. Jones, 520 U.S. 681, 706 (1997) ("The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket."); Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (asserting that district court has inherent power to stay proceedings for the sake of "economy of time and effort for itself, for counsel, and for litigants"); Bowen v. Chase, 94 U.S. 812, 824 (1876) (describing power of courts to consolidate cases "to prevent any practical inconvenience"). Nor has it invoked a necessity standard when describing its power to frame procedural rules in the course of adjudication. See, e.g., Thomas v. Arn, 474 U.S. 140, 146 (1985) (claiming that the courts of appeals possess inherent authority to adopt '"procedures deemed desirable from the viewpoint of sound judicial practice'" (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)) (emphasis added)); United States v. Hasting, 461 U.S. 499, 505 (1983) (claiming that federal courts possess inherent authority to adopt procedures '"guided by considerations of justice'" (quoting McNabb v. United States, 318 U.S. 332, 341 (1943))); Hanna v. Plumer, 380 U.S. 460, 472-73 (1965) (describing federal courts' inherent procedural authority as "strong"); Funk v. United States, 290 U.S. 371, 383 (1933) (claiming that federal courts possess inherent authority to update common law rules of evidence so as to make them more "useful"); In re Hien, 166 U.S. 432, 436 (1897) (explaining that "courts of justice possess the inherent power to make and frame reasonable rules"); Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861) (arguing that the Supreme Court "may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice").
282. The Supreme Court has claimed to possess an inherent supervisory power to impose procedures upon inferior federal courts. See, e.g., Dickerson v. United States, 530 U.S. 428, 437 (2000) ("The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals."). I have argued that this claim is fundamentally flawed. See Barrett, supra note 7, at 325. The Court's designation as "supreme" likely functions as a limitation on Congress's power to design the federal judiciary rather than as a grant of power to the Supreme Court. Id. at 361-65. Moreover, even if it does function as a grant of power to the Court, there is no evidence that power over inferior court procedure would be among the powers granted. Id. at 366-84. The basis of any inherent procedural authority granted to the federal courts is Article III's grant of judicial power, and, as explained in the accompanying text, that power is granted to each court individually.
283. See Meador, supra note 114, at 1805 (explaining that the exercise of inherent authority, "as with all matters of trial court discretion-is subject to appellate review for abuse"); see also Haw. Hous. Auth. v. Midkiff, 463 U.S. 1323, 1324 (1983) (Rehnquist, J., in chambers) ("Although recalling a mandate is an extraordinary remedy, I think it probably lies within the inherent power of the Court of Appeals and is reviewable only for abuse of discretion."); Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824) (holding that the inherent authority to regulate the bar resides in the discretion of each court and the Supreme Court will consequently review disbarments only for an abuse of discretion).
284. See supra notes 161-64 and accompanying text.
285. See supra notes 170-82 and accompanying text.
286. This evidence supports the proposition, explained above and defended elsewhere, that the inherent authority conferred by Article III is local. See supra notes 203-04 and accompanying text. For further historical evidence in support of this proposition, see Tidd, supra note 148, at xii ("[G]eneral rules are confined in their operation to the court in which they are made.... Hence we find, that acts of parliament are frequently necessary, to introduce regulations extending to all the courts....").
287. Modern abstention has its roots in a doctrine traditionally employed by courts of equity. See supra note 27. Preclusion is a longstanding principle of general procedural common law. See, e.g., Stevelie v. Read, 22 F. Cas. 1336, 1337 (Washington, Circuit Justice, C.C.D. Pa. 1808) (No. 13, 389) ("The rule of law is clear, that a judgment is inadmissible in evidence, except between the same parties, or those in privity with them...."); Hurst v. McNeil, 12 F. Cas. 1039, 1041 (Washington, Circuit Justice, C.C.D. Pa. 1804) (No. 6936) (identifying rule of mutuality in preclusion as "a point completely settled, and at rest").
288. See, e.g., Barker v. Wingo, 407 U.S. 514, 530 n.29 (1972) (observing that a court may rely on its inherent authority to "establish[] a fixed time period within which cases must normally be brought").
289. See supra notes 89 (collecting examples of rules adopted in case law in reliance on inherent authority), 91 (collecting examples of managerial measures courts may take in reliance on inherent procedural authority).
290. See generally Barrett, supra note 7.
291. See supra note 35.
292. See supra note 32.
293. See supra notes 46-47 and accompanying text.
294. Compare Harrison, supra note 40, at 525-30 (treating stare decisis as general law),
295. with Lawson, supra note 40, at 212 (treating stare decisis as a doctrine developed pursuant to inherent authority). It is the hybrid nature of stare decisis that makes Congress's power over it a hard question. Were stare decisis only a doctrine of general law, there could be little doubt about Congress's authority to abrogate it. It is the relationship of stare decisis to the inherent authority of each court that makes the question much harder.
296. See supra notes 37-39 and accompanying text.
297. See Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 322-24 (1971) (recounting rejection of mutuality rule for defensive collateral estoppel by the California Supreme Court, numerous federal and state courts, and commentators).
298. See supra note 32.
299. See Nelson, supra note 23.
300. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 428 (1793); see supra note 175 and accompanying text.
301. Section 17 of the Judiciary Act of 1789 authorized every federal court to adopt local court rules. See supra note 131 and accompanying text. Today, 28 U.S.C. § 2071(a) confers the same power. See supra note 66 and accompanying text.
302. 28 U.S.C § 2072(a) (2000). It is worth noting that federal rules adopted pursuant to the Act narrow the range of procedural matters left open to the exercise of inherent authority. See 28 U.S.C. § 2072(b) (2000) ("All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.").
303. The Federal Rules of Civil Procedure continued, with minor changes, many procedural mechanisms long employed by the common law system. For example, motions to dismiss (previously known as demurrers), motions for new trials, and even class actions are procedural devices long employed by courts of common law and equity. At the same time, it made significant changes to the common law by, for example, replacing common law with notice pleading. The Federal Rules of Evidence are similarly modeled upon many longstanding common law doctrines. For example, both the hearsay and character rules largely codify the common law.
304. Cf. Richard L. Marcus, Reform Through Rulemaking? 80 Wash. U. L.Q. 901, 923-25 (2002) (arguing that federal rulemaking process, rather than procedural common law, is the best vehicle for introducing innovative changes, because the rulemaking process solicits input from the larger legal community).