JUDICIAL FEDERALISM

Judicial Federalism

Judicial Federalism

Introduction

The popular consciousness is overwhelmed with an image of the law in the criminal mode. Police shows on television, action movies about terrorism, courtroom novels by former lawyers, televised actual criminal trials, and day-today newspaper and television news shows are generally subsumed with justice as punishment or retribution (Wilson 2008). This is certainly understandable as the consequences of criminal trials can range from significant loss of liberty to ritual death by execution. The stakes are usually higher and thus the dramatic potential is greater. This paper discusses Judicial Federalism.

Discussion

A more balanced view of the life of the law in the United States would be far different. Remedies for evils in a society are just as likely, and in many cases more likely, to flow from civil actions than from criminal law enforcement. The history of a free people will always include the development of an ability to settle disputes and nurture a stable peace and confidence in authority through a rule of civil law. From tax law, what Holmes called the price of civilization, to property real, intangible, and now intellectual, to domestic relations and torts, civil rights and commercial transactions, the life of the law has not been the suppression of crime, but the establishment of civil society.

As much as we must be aware of the problems of criminal law and the rights of criminal defendants, it would be a mistake to concentrate our fire entirely on them (Baker and Young 2001). Therefore, we will proceed in this chapter to address the role of state courts in civil cases as that role affects, and is in turn affected by, judicial federalism.

Most writers who doubt the ability and willingness of state judges to fairly adjudicate federal rights often focus on criminal cases. But some of the same critic's typically argue that civil cases based on federal causes of action, even by willing plaintiffs, should rarely be litigated in state courts. Usually cited are the asserted need for uniformity in federal law, the unreliability of state judges, and the need to protect at least certain types of federal interests. Indeed, Congress has provided that certain matters, such as patent, copyright, and certain securities law actions, can only be litigated by private plaintiffs in federal court (Jackson 2005). But there is a powerful countervailing tradition in favour of concurrent jurisdiction, permitting a plaintiff to choose a federal or state court in which to bring any action. Many federal statutes expressly provide this option, and recent self-studies by federal judges have argued that, to ameliorate the burgeoning caseloads of federal courts, many federal causes of action should be litigated concurrently with, or even exclusively in, state courts.

In this we explain the soundness of the countervailing tradition. It has been sometimes called the new forum shopping, not in the sense that civil plaintiffs have only recently begun litigating federal rights in state court, but that it has only begun to gain intellectual ...