Joiner, Charles W.

English

Louisiana State University: DigitalCommons @ LSU Law Center

Louisiana Law ReviewVolume 14 | Number 3April 1954THE FEDERAL COURTS AND THEFEDERAL SYSTEM, by Henry M. Hart, Jr., andHerbert Wechsler. The Foundation Press, NewYork, 1953. Pp. lvii, 1445. $11.00.Charles W. JoinerThis Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationCharles W. Joiner, THE FEDERAL COURTS AND THE FEDERAL SYSTEM, by Henry M. Hart, Jr., and Herbert Wechsler. TheFoundation Press, New York, 1953. Pp. lvii, 1445. $11.00., 14 La. L. Rev. (1954)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol14/iss3/26Book ReviewsTHE FEDERAL COURTS AND THE FEDERAL SysTEmIV, by Henry M. Hart,Jr., and Herbert Wechsler. The Foundation Press, New York,1953. Pp. lvii, 1445. $11.00.This immense book of 1422 pages of substance is chock fullof practical and theoretical problems pertaining to courts andtheir place in the solution of disputes, federal-state conflicts andfederal jurisdiction. As such, it covers a different area than thetypical course in federal jurisdiction and procedure, or any ofthe normal procedural courses of a law school curriculum. Infact, the authors are not attempting to provide materials for aprocedure course. In their preface they state, "The study offederal jurisdiction has commonly been coupled with that offederal procedure. What has been said will make clear why it isuncoupled here. Procedural problems remain in plenty, to besure, as they must in any study of law administration, but theyare raised and dealt with only as incidents of other problemsposited by the main themes. . . . [This book was] designed tolay the foundation for an advanced course in public law. Thecourse that we envisage would be offered to students who aregrounded both in constitutional law and in conflicts of laws or,at the least, are studying those subjects simultaneously." (p. xii)Thus, we are discussing materials that were not designed to bethe foundation for a basic course of any kind. They were pre-pared as the basis for an advanced course in "public law." Thisproposed course is not merely an advanced course in federaljurisdiction. More accurately, it should be referred to as anadvanced course in the conflicts between the state and federalgovernments as indicated by the problems of the judicial system.Chapter I contains material from which the history andbackground of the federal judicial system may be traced; perti-nent portions of the Constitution itself; articles and papers writ-ten at the time of its adoption; and several excellent papers writ-ten especially for the book, discussing the constitutional conven-tion and the ratification debates, the organization and growth ofthe judiciary, the business and the administration of the federalcourts (showing the kinds of cases actually handled), and theorganization of the Department of Justice. No one reading this[722]BOOK REVIEWSintroductory chapter could help but know a little more about thefederal judicial system.The basic purpose of Chapter II is to develop the conceptof the "case or controversy." This is done traditionally-first,with historical material, and then, by breaking the problem downinto typical definitional problems: adversity of parties, feignedor moot cases, declaratory judgments, political questions, admin-istrative questions, standing to litigate, and the effect of legisla-tive or executive review on judicial decisions. This chapter isnot merely descriptive as is the former. The development is madewith historical material, cases, special text, questions andproblems.Chapter III takes up the original jurisdiction of the SupremeCourt. Seventy pages of cases and text are devoted to theo-retical discussion of problems having little practical value.Chapter IV begins what the editors refer to as "the core ofthe book," and it is here that the emphasis on the problems offederal-state conflicts begins. This interest in and emphasis onfederal-state conflicts makes the book in this area an advancedconstitutional law book, and I believe that the editors so intendedit. Chapter IV is entitled "Congressional Control of the Distri-bution of Judicial Power Over Federal and State Courts." Thechapter covers the following problems: first, the power of Con-gress to limit or expand the jurisdiction of federal courts; second,the problem of Congress' authority to exclude state courts fromjurisdiction and to provide removal from state to federal courts;third, Congress' authority to create obligations on the part ofstate courts to hear and determine federal problems. Theapproach of the whole chapter is to show the development ofthe problems and the ultimate limitations in the Constitution onthe expansion of congressional power in this area. As such itwould be of little value as a desk book for the practitioner butwould be very valuable as a reference book to the lawyer havingproblems in this area. An attorney engaged in writing a brieffor a client, trial or appellate court involving problems coveredby the book would find it invaluable. In the better than one hun-dred pages devoted to this chapter only seven cases are reported.Text and notes predominate. This is typical of the entire book.Chapter V shows the power of the Supreme Court to reviewdecisions of the state courts and the means by which the otherconstitutional rights-for example, "contract clause," "due pro-1954]LOUISIANA LAW REVIEWcess," and "full faith and credit"-are protected by this review.In this chapter there is some space devoted to the procedureavailable for such review.Chapter VI is devoted to a discussion of the law applied inthe federal district courts. The development of a country-wideuniform procedural system is shown while at the same time theshift was made from uniform federal substantive law to thedoctrine of Erie R.R. v. Tompkins.Chapter VII is a theoretical discussion of the two majorareas of federal jurisdiction: federal question and the diversityof citizenship. In this area the authors raise both the constitu-tional and statutory problems.Chapter VIII, entitled "General Problems of District CourtJurisdiction," starts with a discussion of process, jurisdictionover persons, and venue. Thereafter the jurisdictional amountproblem is treated. Removal jurisdiction and procedure is devel-oped. The problem of conflicts between federal and state courtjurisdiction, as exemplified by the case of Toucey v. New YorkLife Insurance Co., 314 U.S. 118 (1941), is also treated in full.In the next two chapters, IX and X, two special problemsare picked out by the authors as needing development-federalgovernment litigation and federal habeas corpus. Two hundredand fifty pages are devoted to the development of these problems.In not devoting space to the admiralty, bankruptcy, patent, trade-mark and copyright problems, and incidentally all of the otherspecial statutory federal question problems, and in developingthese two special problems only, the authors say in their preface,"These matters [federal government litigation and federal habeascorpus] are not commonly the subject of separate law schoolcourses. They are of high importance and, as even the severelycondensed treatment in this volume shows, they have sufferedtoo long from scholarly and professional neglect." (p. xiv)The last chapter handles the problem of Supreme Courtreview of federal decisions. It is an excellent collection of mate-rial for one desiring to learn about the methods of review andalso the policy of the Supreme Court behind the grant ofcertiorari.With this background, let us examine the book critically tosee how well the authors have accomplished their purposes.First, the materials collected are superb. The vast amount ofVOL. XIVBOOK REVIEWStext is carefully, critically, and so far as I could tell on a reviewreading, accurately prepared. The authors are to be compli-mented on the prodigious amount of work and the excellence ofthe scholarship that has gone into the book..Second, I think that the authors are correct when they indi-cate that the book is not a book for the basic course in federaljurisdiction and procedure. Such a course, in my judgment,could not be taught successfully from these materials, and infact, should not be taught at all in law schools. Federal juris-diction and procedure should be studied along with the study ofstate jurisdiction and procedure. Comparison needs to be madebetween the two systems in order to put the students in theshoes of a practitioner, to show the choices that must be madeat all stages of litigation and to assist the students to see theproblems facing the bar association committees in their effortsto improve the system of judicial administration. Though sepa-rate courses in basic federal jurisdiction and procedure have beenoffered in the past in many schools, they are being replaced bycourses in which both federal and state jurisdiction and pro-cedure are studied at the same time. Apparently this is the situ-ation at both Harvard and Columbia. For a full description ofsuch a plan, see Joiner, "Teaching Civil Procedure: The Michi-gan Plan," 5 Journal of Legal Education 459 (1953).Third, this book would appear to be an excellent basis foran advanced course in federal-state conflicts, taken after thebasic courses in procedure and constitutional law. Such a courseprobably should be handled in small groups and certainly neednot be required.Fourth, this book could serve as a source book for studentstaking the procedure courses and constitutional law. I shouldbe very pleased to have my students read much of the materialin the book for my course in "Jurisdiction and Judgments." Itwould be a fine reference book for lawyers, to help them solveproblems of federal-state conflicts.In my judgment, the authors have done the profession andlaw schools a real service by the preparation of these materials.Even if a school does not give the advanced course envisionedby the authors, students in the basic procedural courses shouldbe made to dig into the materials prepared and collected.Charles W. Joiner** Professor of Law, University of Michigan.19541

THE FEDERAL COURTS AND THE FEDERAL SYSTEM, by Henry M. Hart, Jr., and Herbert Wechsler. The Foundation Press, New York, 1953. Pp. lvii, 1445. $11.00.

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2140&context=lalrev

THE FEDERAL COURTS AND THE FEDERAL SYSTEM, by Henry M. Hart, Jr., and Herbert Wechsler. The Foundation Press, New York, 1953. Pp. lvii, 1445. $11.00.

Abstract

Similar works

Full text

Available Versions

Louisiana State University: DigitalCommons @ LSU Law Center