The Future of Federal Courts

In an earlier post, I offered some modest praise of the AALS annual meeting, as a potential venue for legal scholars to explore topics of interest beyond their core research areas. In between my efforts to actualize that theory at the recent annual meeting, though, I also attended several sessions of quite direct interest.

Among the latter, one of my favorites was a panel organized by the Section on Federal Courts, on The Federal Courts and the International System. Besides Ernie Young, who served as moderator, the panel included A.J. Bellia, Curt Bradley, Henry Monaghan, and Trevor Morrison, as well as Sarah Cleveland, who was invited to speak for the “international law” crowd. (As Sarah pointed out, Curt is also an international law scholar, if not the designated internationalist that day.)

Much of the discussion focused on the many intersections of international law and federal jurisdiction in recent years, including the succession of enemy combatant/military commission cases, the Supreme Court’s OT 2005 decision in Sanchez-Llamas v. Oregon, and its impending decision in the fascinating case of Medellin v. Texas – a complex intertwining of international and federal courts law that only a law professor could dream up, and even then, only as an exam question. Naturally, the nature of customary international law as federal or state law was discussed as well, if only for a bit.

At Ernie’s prompting, though, the panelists also took up – in sometimes heated discussion – the necessary and appropriate content of the standard Federal Courts course, given the self-evident “internationalization” of the federal courts. To what extent, the panel explored, do international law, international courts, and international questions belong in the Federal Courts canon? Naturally, the Hart and Wechsler casebook – arguably the keeper of that canon – was a focal point for much of this discussion.

In essence, the question boiled down to the wisdom – and viability – of bringing international law and courts into the Federal Courts curriculum. The panel itself clearly had mixed emotions, with Henry Monaghan expressing the greatest doubts on both counts, if particularly on the viability of fitting it all in, and Curt Bradley perhaps most vocally in favor of greater inclusion.

I was particularly struck by Judith Resnik‘s question from the floor, though, which queried how a modern-day version of the course in Federal Courts could exclude international law and courts or, for that matter, tribal courts operating within the United States?

This seemed to resonate most with my own sense of the question. What, I wondered as I listened to the discussion, should we understand as the heart of a present-day course in federal courts? Ernie Young, in a forthcoming piece in the Emory Law Journal, which he delivered at a symposium on The New Federalism: Plural Governance in a Decentered World, an event co-sponsored by the Center on Federalism and Intersystemic Governance I co-direct at Emory, describes federal courts law as being about “managing jurisdictional conflicts and developing rules for remedies and choice of law.” If so, with the growing number and influence of international tribunals, isn’t the natural – perhaps inevitable – evolution of the standard Federal Courts course to bring them into the mix?

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