Howard M Wasserman Copyright (c) 2012 All rights reserved. http://works.bepress.com/howard_wasserman Recent documents in Howard M Wasserman en-us Sat, 24 Nov 2012 11:02:56 PST 3600 The Roberts Court and the Civil Procedure Revival http://works.bepress.com/howard_wasserman/16 http://works.bepress.com/howard_wasserman/16 Wed, 24 Aug 2011 21:46:12 PDT In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions—the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases potentially in play in the upcoming October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

]]> Howard M. Wasserman Courts Judges Jurisdiction Practice and Procedure The Roberts Court and the Civil Procedure Revival http://works.bepress.com/howard_wasserman/15 http://works.bepress.com/howard_wasserman/15 Tue, 16 Aug 2011 21:21:29 PDT In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions—the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases potentially in play in the upcoming October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

]]> Howard M. Wasserman Courts Jurisdiction Politics Practice and Procedure The Roberts Court and the Civil Procedure Revival http://works.bepress.com/howard_wasserman/14 http://works.bepress.com/howard_wasserman/14 Tue, 16 Aug 2011 20:16:43 PDT In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions—the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases potentially in play in the upcoming October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

]]> Howard M. Wasserman Courts Politics Practice and Procedure Constitutional Pathology, the War on Terror, and United States v. Klein http://works.bepress.com/howard_wasserman/13 http://works.bepress.com/howard_wasserman/13 Wed, 01 Sep 2010 18:17:35 PDT In The Irrepressible Myth of Klein (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010) I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless domestic surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees in and out of federal court). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power--the myth--of Klein as constitutional precedent.

]]> Howard M. Wasserman Constitutional Law Courts Criminal Law and Procedure Judges The War on Terror, Constitutional Pathology, and United States v. Klein http://works.bepress.com/howard_wasserman/12 http://works.bepress.com/howard_wasserman/12 Mon, 09 Aug 2010 19:35:48 PDT In "The Irrepressible Myth of Klein" (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010), I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power--the myth--of Klein as constitutional precedent.

]]> Howard M. Wasserman Constitutional Law Courts Judges The Irrepressible Myth of Klein http://works.bepress.com/howard_wasserman/11 http://works.bepress.com/howard_wasserman/11 Sun, 07 Mar 2010 20:44:27 PST The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. In 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. The myth of Klein is demonstrated in two recent pieces of Global War on Terror legislation: the Military Commissions Act of 2006, which limited federal judicial decisionmaking in cases brought by GWOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting domestic warrantless surveillance. Both pieces of legislation survive constitutional Klein scrutiny, revealing that, properly understood, the case does no real constitutional heavy-lifting. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Legal History Legislation Politics Practice and Procedure The Irrepressible Myth of Klein http://works.bepress.com/howard_wasserman/10 http://works.bepress.com/howard_wasserman/10 Sun, 07 Mar 2010 20:38:36 PST The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. In 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. The myth of Klein is demonstrated in two recent pieces of Global War on Terror legislation: the Military Commissions Act of 2006, which limited federal judicial decisionmaking in cases brought by GWOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting domestic warrantless surveillance. Both pieces of legislation survive constitutional Klein scrutiny, revealing that, properly understood, the case does no real constitutional heavy-lifting. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Legal History Practice and Procedure The Irrepressible Myth of Klein http://works.bepress.com/howard_wasserman/9 http://works.bepress.com/howard_wasserman/9 Thu, 18 Feb 2010 13:54:01 PST The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts: 1) Congress cannot dictate case outcomes or judicial findings and conclusions; 2) Congress cannot tell courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. Blatant legislation actually violating any of these principles is unlikely to be enacted. On the other hand, in 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. The myth of Klein is demonstrated in two recent pieces of Global War on Terror legislation: the Military Commissions Act of 2006, which limited federal judicial decisionmaking in cases brought by GWOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting domestic warrantless surveillance. Both pieces of legislation survive constitutional Klein scrutiny, revealing that, properly understood, the case does no real constitutional heavy-lifting. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Legal History Legislation Politics Practice and Procedure The Irrepressible Myth of Klein http://works.bepress.com/howard_wasserman/8 http://works.bepress.com/howard_wasserman/8 Thu, 18 Feb 2010 08:10:46 PST The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts: 1) Congress cannot dictate case outcomes or judicial findings and conclusions; 2) Congress cannot tell courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. Blatant legislation actually violating any of these principles is unlikely to be enacted. On the other hand, in 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. The myth of Klein is demonstrated in two recent pieces of Global War on Terror legislation: the Military Commissions Act of 2006, which limited federal judicial decisionmaking in cases brought by GWOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting domestic warrantless surveillance. Both pieces of legislation survive constitutional Klein scrutiny, revealing that, properly understood, the case does no real constitutional heavy-lifting. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Legal History Legislation Politics Practice and Procedure The Irrepressible Myth of <em>Klein</em> http://works.bepress.com/howard_wasserman/7 http://works.bepress.com/howard_wasserman/7 Tue, 18 Aug 2009 18:40:45 PDT This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-law canon, a subject of a sort of “cult” among some lawyers and commentators, although no one seems to know how or why. Two connected myths surround Klein. First, the case is said to be meaninglessly indeterminate because, given the confusing and disjointed language of the opinion, its precise doctrinal contours are not clear; second, the case is believed (and hoped) to function as vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Both of these ideas are false. In fact, close analysis of Klein, its progeny, and past scholarship reveals three core, somewhat-related principles of separation of powers and limits on congressional control over the courts: 1) Congress cannot dictate case outcomes; 2) Congress cannot tell the courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules.

But close analysis also reveals that Klein lacks doctrinal vigor and that the belief in Klein's power is purely a myth. Those three core principles are neither groundbreaking nor exceptional and all are common ideas, reflected in and associated with other precedents and constitutional doctrines; we do not need Klein to advance these separation-of-power ideals. Consider that no federal law has been judicially invalidated on Klein grounds since the law challenged in Klein itself.

Klein’s principles fail to limit in any meaningful way Congress’ power to enact two recent, controversial pieces of War-on-Terror legislation: the Military Commissions Act of 2006, which imposed limits on Habeas Corpus on federal judicial decisionmaking in cases brought by WOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting warrantless surveillance of people in the United States. Although both laws limit and control the authority, operation, and decisionmaking of federal courts over highly contested legal and constitutional issues—the concerns at Klein's heart—the case imposes no meaningful constitutional barriers to either enactment and both survive constitutional scrutiny. The continued belief that Klein imposes significant constitutional limits is a continued belief in a legal myth.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Jurisdiction Legal History Legislation Politics Practice and Procedure Public Law and Legal Theory Orwell's Vision: Video and the Future of Civil Rights Enforcement http://works.bepress.com/howard_wasserman/6 http://works.bepress.com/howard_wasserman/6 Wed, 10 Sep 2008 12:26:17 PDT The future of the enforcement of civil rights and civil liberties is linked to video. New portable technology—digital cameras, phones, camera-ready cell phones, MP3 recorders, and other technology—enables the public to produce their own personal record of their lives and environment, including records of their confrontations with police and of encounters they witness between government officials and other members of the public. At the same time, law enforcement has equipped itself to record its own encounters with the public, in the privacy of the interrogation room and on the streets. The result is a balance of power in which all sides can record most police-public encounters—Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.

This balance triggers the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video—as evidence in constitutional litigation under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, dismissing criminal charges, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second is the recent pathbreaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman, sowing that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics of race, age, sex, socio-economic status, education, cultural orientation, ideology, and party affiliation. These insights together demand a level of caution—a degree of judicial humility in how certain they should be about what they (believe they) see or understand from the recording and the appropriate legal and policy steps to take in response.

This paper explores the role and impact of video in litigating and enforcing constitutional rights and litigating civil-rights controversies. Video evidence is beneficial and promotes justice by providing probative evidence that helps show (to judges, juries, policymakers, and the public) whether a constitutional violation occurred. But, because the meaning of video is not as objective, unambiguous, and singular as the myths suggest, and because inevitable interpretations of video will be subject to culturally tinged differences, video evidence should not be over-emphasized or allowed to overwhelm decision making processes. Most importantly, courts must not use misunderstandings of video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.

]]> Howard M. Wasserman Civil Rights Constitutional Law Practice and Procedure Orwell's Vision: Video and the Future of Civil Rights Enforcement http://works.bepress.com/howard_wasserman/5 http://works.bepress.com/howard_wasserman/5 Thu, 07 Aug 2008 19:12:31 PDT The future of the enforcement of civil rights and civil liberties is linked to video. New portable technology—digital cameras, phones, camera-ready cell phones, MP3 recorders, and other technology—enables the public to produce their own personal record of their lives and environment, including records of their confrontations with police and of encounters they witness between government officials and other members of the public. At the same time, law enforcement has equipped itself to record its own encounters with the public, in the privacy of the interrogation room and on the streets. The result is a balance of power in which all sides can record most police-public encounters—Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.

Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video—as evidence in constitutional litigation (at trial and during pre-trial processes) under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second is the recent pathbreaking Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman, sowing that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer’s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer’s identity-defining cultural characteristics of race, age, sex, socio-economic status, education, cultural orientation, ideology, and party affiliation. These insights together demand a level of caution—a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response.

At the front end is the question of whether individuals possess a right to record police-public encounters as they occur and whether government can limit people’s ability to use modern technology to create their own records of events. Government might restrict public recording in either of two ways—specific prohibitions on unconsented-to recording of conversations that (as in Massachusetts) include conversations by police officers performing official functions or enforcement of general rules of public conduct as to people attempting to record police-public encounters. The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be “yes,” in order to maintain that balance of power in availability and control of video evidence.

This paper explores the role and impact of video in litigating and enforcing constitutional rights at the front and back ends of civil-rights controversies. Video evidence is beneficial and promotes justice at the back end by providing probative evidence that helps show (to judges, juries, policymakers, and the public) whether a constitutional violation occurred. But, because the meaning of video is not as objective, unambiguous, and singular as the myths suggest, and because necessary interpretations of video will be subject to culturally tinged differences, video evidence should not be over-emphasized or allowed to overwhelm decision making processes. Most importantly, courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video’s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation. But even exercising such caution, video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. And as additional evidence, video is beneficial to the pursuit of justice. Government therefore cannot have a monopoly on the ability to record police-public encounters. Instead, the liberty of individuals to do record public encounters must be preserved; the public must have a constitutional liberty to watch Big Brother.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Practice and Procedure Jurisdiction, Merits, and Non-Extant Rights http://works.bepress.com/howard_wasserman/4 http://works.bepress.com/howard_wasserman/4 Thu, 15 Mar 2007 17:02:16 PDT The debate about the constitutionality and wisdom of Congress “stripping” federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated.

Under Wesley Hohfeld’s model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf’s conception of “existence conditions,” requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law.

At some level, limits on substantive rights have “loosely but realistically” been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase “jurisdiction stripping” loosely or inaccurately.

This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld’s model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules.

This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.

]]> Howard M. Wasserman Civil Rights Constitutional Law Courts Judges Jurisdiction Legislation Politics Practice and Procedure Jurisdiction, Merits, and Non-Extant http://works.bepress.com/howard_wasserman/3 http://works.bepress.com/howard_wasserman/3 Fri, 02 Mar 2007 09:47:09 PST The debate about the constitutionality and wisdom of Congress “stripping” federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated.

Under Wesley Hohfeld’s model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf’s conception of “existence conditions,” requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law.

At some level, limits on substantive rights have “loosely but realistically” been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase “jurisdiction stripping” loosely or inaccurately.

This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld’s model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules.

This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.

]]> Howard M. Wasserman Civil Rights Courts Jurisdiction Legislation Politics Practice and Procedure Jurisdiction, Merits, and Non-Extant Rights http://works.bepress.com/howard_wasserman/2 http://works.bepress.com/howard_wasserman/2 Tue, 27 Feb 2007 12:59:08 PST The debate about the constitutionality and wisdom of Congress “stripping” federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated.

Under Wesley Hohfeld’s model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf’s conception of “existence conditions,” requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law.

At some level, limits on substantive rights have “loosely but realistically” been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase “jurisdiction stripping” loosely or inaccurately.

This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld’s model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules.

This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.

]]> Howard M. Wasserman Civil Rights Courts Jurisdiction Legislation Politics Practice and Procedure Public Law and Legal Theory Jurisdiction, Merits, and Non-Extant Rights http://works.bepress.com/howard_wasserman/1 http://works.bepress.com/howard_wasserman/1 Tue, 20 Feb 2007 15:47:41 PST The debate about the constitutionality and wisdom of Congress “stripping” federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated.

Under Wesley Hohfeld’s model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf’s conception of “existence conditions,” requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law.

At some level, limits on substantive rights have “loosely but realistically” been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase “jurisdiction stripping” loosely or inaccurately.

This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld’s model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules.

This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.

]]> Howard M. Wasserman Constitutional Law Courts Jurisdiction Legislation Practice and Procedure