Perhaps Herbert Wechsler needs no introduction, no expression of appreciation. He did, after all, leave an indelible mark on three bodies of law: criminal law, constitutional law, and the law of federal jurisdiction. He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval. Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.
But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy. The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.
I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code. I find myself returning to the article for a number of reasons. To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices. In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law. Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform. Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy.
Finally, the article offers a glimpse backward to the middle years of the twentieth century, when Congress was placing the government on a more responsible footing in relation to the citizens hurt by the conduct of government business. Congress had just adopted the Administrative Procedure Act and the Federal Tort Claims Act, both aimed at facilitating litigation to remedy illegal federal government action. Rather than something that courts and commentators cherished or sought to defend, sovereign immunity was rightly regarded as a relic of a less enlightened age.
