Constitutional Commentary, Vol. 14, No. 1 (Spring 1997), pp. 175-208


No law book has enjoyed greater acclaim from distinguished commentators over a sustained period than has Hart & Wechsler's The Federal Courts and the Federal System. Indeed, the praise seems to escalate from one edition to the next. Reviewing the first edition, published forty-three years ago, Philip Kurland called it "the definitive text on the subject of federal jurisdiction." Paul Mishkin added that "the analysis is of an order difficult to match anywhere." In his review of the second edition, published in 1973, Henry Monaghan began by praising the first for having "deservedly achieved a reputation that is extraordinary among casebooks," and then continued: "[M]y view is that the second edition is at nearly every material point better than its predecessor." When the third edition appeared in 1988, Akhil Amar called the first edition "beautiful and brilliant," and thought the third "better in many respects." No doubt similar encomia will greet the recently published fourth edition. Certainly the research is as thorough, the analysis as trenchant, and the questions as probing as ever. Hart & Wechsler continues to set the standard that other books must aspire to meet. Yet technical virtuosity and comparative merit are not the only tests by which a casebook may be judged. At the risk of losing my union card in the Federal Courts workshop, I proposed to show that the editors, through all four editions, are fundamentally misguided in their approach to Federal Courts law. This article questions the methodology Hart & Wechsler, and Federal Courts scholars who follow its lead, use in addressing Federal Courts issues. Part I lays out the Hart & Wechsler model of Federal Courts law. Part II distinguishes naked substance from jurisdictional policy and traces the impact of substantive themes of jurisdictional doctrine. Part III finds fault with the fourth edition's treatment of substance. Part IV explains why these themes are given little systemic attention by this and other casebooks. Part V argues that the editors are wrong to deemphasize them.