Title: An Incomplete Discussion of "Arising Under" Jurisdiction
Abstract: INTRODUCTION Dan Meltzer's luminous to quote from the dedication to the recently published seventh edition of the Hart and Wechsler book on the federal judicial system, has enriched our field. (1) And so I am privileged to participate in this symposium honoring that work, which covers almost four decades and which ended much too soon. Dan's goal in his scholarship was not to deconstruct but to elevate. Doctrine and function, as he saw them, were not mutually exclusive or completely independent concepts. Each had an important role: the former to provide legitimacy, coherence, stability, and predictability in the law; the latter to ensure that the law serves the practical needs of a complex and powerful federal judicial system. But neither should be considered apart from the other. A major aim of his scholarship, then, was to bring those two concepts into closer alignment. There are many illustrations. Perhaps my favorite is an article he coauthored with his friend and colleague, Richard Fallon, that focused on the availability of remedies for constitutional violations. (2) In that classic article, the effort to bring doctrine and function into closer alignment is beautifully captured in the following passage: Within our constitutional tradition ... the Marbury dictum [that there must be a remedy for every right] reflects just one of two principles supporting remedies for constitutional violations. Another principle, whose focus is more structural, demands a system of constitutional remedies adequate to keep government generally within the bounds of law. Both principles sometimes permit accommodation of competing interests, but in different ways. The Marbury principle that calls for individually effective remediation can sometimes be outweighed; the principle requiring an overall system of remedies that is effective in maintaining a regime of lawful government is more unyielding in its own terms, but can tolerate the denial of particular remedies, and sometimes of individual redress. (3) My purpose in this brief Essay is to expand on this theme as it played out in Dan's role as collaborator, friendly critic, and keen analyst, and to do so by exploring a problem that in some ways lies at the heart of our elaborate system of judicial federalism, even though (perhaps because it does not arise that often) it has received somewhat less attention than it deserves. That problem addresses the nature of federal judicial authority--and especially the appellate jurisdiction of the Supreme Court--when a federal issue is embedded in, or when its determination may affect the resolution of, a question of state law. The story as told here begins with, and radiates out from, a seventy-year-old decision of the Supreme Court, Standard Oil Co. of California v. Johnson. (4) I want to focus on its consideration over the years by Dan and me, and on its effect on our thinking about related issues. This story, I think, tells something not only about the fascination of the field we both enjoyed so much, but also about both the delights of a long collaboration on a respected book and the joys of colleagueship and dialogue. While the narrative deals only with what ended up in print, beneath the surface lie many wonderful conversations about this and related problems. Telling the story requires some background and warrants a concluding effort to bring my own thinking up to date. I. THE STORY Since the Standard Oil decision plays a central role, it deserves a summary at the outset. California law imposed a tax, measured by gallonage sold, on the distribution of motor fuel. The law provided an exemption from tax for motor vehicle fuel sold to the government of the United States or any department thereof for official use of said government. (5) Standard Oil sold gasoline to U.S. post exchanges in the state, and, after paying the tax, brought a state court action to recover the payment on the grounds that (1) such sales came within the quoted exemption as a matter of state law, and (2) if not, the state law would impose a burden on instrumentalities of the United States in violation of the Federal Constitution. …
Publication Year: 2016
Publication Date: 2016-05-01
Language: en
Type: article
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