Ann Woolhandler

Interstate Sovereign Immunity

In Nevada v Hall, the Supreme Court held that the Constitution does not prevent a state from opening its courts to suits against other states. The Court therefore affirmed a California damages judgment against Nevada arising from an automobile accident in California. More recently, in Franchise Tax Board v Hyatt, the Court unanimously allowed a Nevada resident’s case in a Nevada court to proceed against California for an allegedly abusive tax investigation. In a footnote, the Court declined to reconsider the question of the defendant state’s constitutional immunity, noting that the defendant had not pressed that issue. Hall and Hyatt may give the impression that allowing state court suits against sister states involves only a grudge match between California and Nevada. But Hyatt was one of dozens of suits that individuals have pursued against states in the courts of other states

Does History Defeat Standing Doctrine

Although the modern Supreme Court claims historical support for refusing to let private parties who have suffered no concrete private injury ask federal courts to redress harms to the public at large, academic critics have insisted that the law of standing is a twentieth-century invention of federal judges. In earlier eras, the critics argue, the recognized forms of action might have required plaintiffs to have particular injuries in order to make out specific claims, but there was no generalized standing law, and certainly no constitutional requirement of individualized injury for people challenging governmental action. This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials. We do not claim that history compels acceptance of the modern Supreme Courts vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitutions meaning.

Judicial Federalism under Marshall and Taney

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism. The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power. The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”

Delegation and Due Process: The Historical Connection

In Whitman v American Trucking Associations, the Supreme Court reiterated the established modern doctrine that Congressmay not delegate power to an executive agency unless Congress has supplied “an intelligible principle” to guide the agency’s actions. Judge Harold Leventhal of the D.C. Circuit had urged, in a wellknown opinion, that an apparent congressional “blank check” might be remedied by procedural constraints on the agency, together with the agency’s supplying its own substantive standards. Scholars sim-

The Article III Jury

Current dissatisfaction with the civil jury is often coupled with fatalism as to the judicial systems ability to do anything about it. Yet the whimsical nature of jury verdicts is to a large extent a wound that the judiciary has inflicted upon itself and litigants. Viewing the jury in terms of traditional federal courts scholarship-as an alternative decisionmaker to the Article III judge-shows both the long and consistent history of extensive judicial involvement in jury decisionmaking from the early Republic up through the Lochner era, and the later movement of the New Deal Court effectively to abandon it. Contrary to the belief of scholars and jurists, the Seventh Amendment should not present an obstacle to enhanced judicial control of juries, such as those in which the Court once engaged. While the Amendment will obviously present limitations on certain kinds of reform, the greater obstacle may prove to be a judicial unwillingness to engage in the difficult task of immersion into and elaboration of the facts and law of quotidian cases. To be sure, deference to other decisional institutions may enhance legitimacy, as when the courts defer to legislative judgments as to the rationality of economic legislation. But excessive deference to juries may undermine legitimacy by delegating the primary judicial responsibility of assuring the quality of justice.