Wednesday, November 4, 2009

Jackson and Resnik's Federal Courts Stories

One doesn't generally expect to find first-rate scholarship in works intended as supplements to law school casebooks. This is true even for the intelligently conceived "Law Stories" series, published by Foundation Press, which "tell the stories behind the leading cases in important areas of law." Its thirty or so volumes have performed the pedagogically useful function of making accessible information that would otherwise remain buried in a case's unpublished record or severely compressed in a casebook note. Although I certainly can't speak to the whole series, my guess is that Ajay Mehrotra's verdict on Tax Stories, published in the Journal of Legal Education, might well apply more broadly. That volume did a better job at using the "vividness of storytelling to attract student interest in some of the landmark Supreme Court cases at the center of the introductory tax course," Mehrotra wrote, than in capturing "the interpretive power of historical analysis," that is, showing how the past matters in any rich understanding of today's doctrines and institutions of taxation.

On the chance that other historians have had a similar reaction, I write to encourage readers to take a fresh look at the just published Federal Courts Stories, edited by Vicki C. Jackson, Georgetown University Law Center, and Judith Resnik, Yale Law School. The editors introduce the volume with a capacious and succinct account of the history of federal courts as a law school course and scholarly field. Leading teachers and scholars of Federal Jurisdiction contribute, including Daniel Meltzer (on Ex parte McCardle) James Pfander (on Bivens), Lauren Robel (on Railroad Commission of Texas v. Pullman Co.), David Shapiro (on Lincoln Mills), and Carlos Vázquez (on Ex parte Quirin). Especially striking is the presence of first-rate constitutional and legal historians among the contributors, including Barry Friedman (on Ex parte Young), Edward A. Purcell, Jr. (on Michigan v. Long), William Michael Treanor (on Marbury, previously noted here), and Ann Woolhandler (on Tarble's Case, with her coauthor Michael Collins, previously noted here).

Because political historians might miss it in a collection of essays on federal courts, I especially want to single out Mark Tushnet's essay "The Story of Crowell: Grounding the Administrative State." I've struggled a bit myself with Crowell v. Benson (1932), in which Charles Evans Hughes, near the start of his chief justiceship, warned federal administrators not to stray beyond the jurisdictional limits set for them by Congress and the Constitution. Tushnet's essay is revealing on the underlying facts, illuminating and penetrating on the doctrinal issues, and thought-provoking on the case's significance for legal "progressives." The essay is essential reading for historians of administrative law and the administrative state.