Abstract:
In recent decisions across an array of civil procedure and federal courts law settings, the Supreme Court has rearticulated the terms of access to the federal courts. In these cases, addressing standing, pleading standards, class actions, and bankruptcy jurisdiction, the Court has relied on an account of the judicial role centered on resolving disputes that stem from personal harms, and has shaped procedural doctrine around claims that take that form. I argue that the Court’s approach reflects a common law model of the federal courts, a model whose renewed prominence at the procedural stage is striking in an era increasingly characterized by legislative and regulatory frameworks. I contend that the Court’s emphasis on a common law account presents a distinct model of a common law court in a regulatory world. The Article presents this model and its invocation in the recent cases, and discusses its implications for the enforcement of substantive law. In particular, I suggest that this approach shapes a judicial orientation apart from rather than alongside the political branches, minimizing the judicial role in facilitating the enforcement of the law.
SAUL ZIPKINA, Common Law Court in a Regulatory World. OHIO STATE LAW JOURNAL, Vol 74:2, 285.
First posted 2013-06-04 06:39:55
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