Emory Law Journal, Vol. 47, No. 1 (Winter 1998), pp. 89-162


In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, especially when someone challenges the validity of state action on federal constitutional or statutory grounds. These arguments, however, do not posit that state courts are fundamentally defective or unfair. As a result, arguments based on federal "competence" or "sympathy" or "effectiveness" almost always depend, at bottom, on an appeal to naked ideology, without saying so. This Article proceeds as follows: Part I distinguishes among three kinds of argument, for the sake of clarifying the issue that I wish to address. Part II lays out the prevailing model of Federal Courts law, the Hart and Wechsler Paradigm, a model which rejects arguments of naked politics. Part III describes the impact of naked politics on Federal Courts law; and Part IV explains why the Hart and Wechsler paradigm cannot withstand the pressure. Part V gives reasons why appeals to naked ideology belong in the Federal Courts canon and provides some illustrations of their potential impact.