The Federal Courts field may be experiencing a methodological crisis, but if so, it is a methodological crisis of a peculiar kind. The problem is not that new methodologies threaten traditional modes of analysis. On the contrary, the difficulty is that we have been doing largely the same thing for more than forty years--asking much the same questions formulated by Henry Hart and Herbert Wechsler in the first edition of The Federal Courts and the Federal System' and trying to answer them with roughly the same techniques. Not surprisingly, a number of people would like to throw off the Hart and Wechsler yoke and get on with something else. But what? The restiveness that I sense among many Federal Courts teachers brings to mind two metaphors. The first is that of oedipal rebellion. Arguably, it is past time when self-respecting legal academics would have demolished conventions established by such long- dominant authority figures as Hart and Wechsler. I have my own share of oedipal urges. On the fourth floor of Harvard Law School's Griswold Hall, no more than twenty-five feet from my office, hangs a larger-than-life portrait of Henry Hart. As I gaze at Professor Hart each morning, I often experience awe at his scholarly achievements, as reflected not only in the Hart and Wechsler casebook but also in the equally profound and influential materials on The Legal Process that he co-authored with Albert Sacks. But it is not always gratifying to work in the shadow of a legend. Among other things, I know that many colleagues in other fields view work in Hart's shadow as dull work indeed. When I began teaching Federal Courts twelve years ago, a former teacher of mine described the field as an "intellectual backwater." It was an area ripe for imaginative revision, he thought. Yet no fundamental reorientation has occurred in the interim. Why not?
Richard H. Fallon, Jr.,
Reflections on the Hart and Wechsler Paradigm,
47 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol47/iss4/4