Lumen N. Mulligan (Michigan State University College of Law) has posted Federal Courts Not Federal Tribunals on SSRN. Here is the abstract:
The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. – 1331 or Article III. Borrowing a phrase from Justice Scalia, I coin this new jurisdictional view the "tribunals position." I argue that even assuming a judicial policy weighing against inferring causes of action is wise; the move to treat this policy issue as a jurisdictional question is not. First, I trace the shadowy history of the tribunals position from dissents in the 1940s to a majority opinion in the October 2007 term. Next, I contend that – 1331 jurisdiction, contrary to the key assumption of the tribunals position, is best understood as a function of federal rights, not causes of action. I further contend that originalist-based interpretations of Article III that challenge the propriety of inferring causes of action are (even on intra-originalist grounds) unpersuasive, because they fail to account for the distinction between constitutional interpretation and constitutional construction. I conclude that the still nascent attempts to construe a policy preference against inferring causes of action as a jurisdictional matter illustrate the broader point that matters of prudence are ill-conceived as jurisdictional questions.
And from the text:
[The] distinction between interpretation and construction sheds a
great deal of light upon the Article III variation on the tribunals position. I
will assume that the proponents of the tribunals position have correctly
interpreted Article III’s original public meaning as embedded within the
concepts of writ pleading. But unless proponents of the view are willing to
take the hard stance that Article III prohibits the use of any scheme of civil
procedure other than writ pleading (which they generally are not),246 the proponents of the Article III tribunals position fail to recognize that they
face a question of construction. To be explicit, if Article III is best
interpreted (1) against a background of writ pleading notions in force at
the time of the founding but (2) as not prohibiting the adoption of other
forms of civil procedure, then a question of construction arises as to how
the courts are to apply these background writ-pleading concepts into our
modern procedural scheme. This conclusion follows because the semantic
meaning of the text of the Constitution simply does not answer the
question of how to apply writ-pleading concepts into a post-merger-of-
law-and-equity court system. Any attempt to address this question is
necessarily supplementing constitutional text, not recognizing historical
meaning; as such, the endeavor is one of construction not interpretation.247
Moreover, because this endeavor is one of construction, the grounds of
legitimacy that flow to originalist interpretation are not present. A
proponent of the Article III version of the tribunals position, then, must
provide an independent normative basis for the view that modern courts
are constrained by Article III from inferring causes of action unless the
plaintiff suffered an injury that would have been remediable by way of a
common law writ.
Very interesting!