Vanderbilt Law Review


Ann Althouse

First Page



I began my work in this field about a decade ago, as a teacher, quite simply, trying to find some coherence, some sense in the notoriously complex doctrine. Finding a scheme of coherence, a framework, really is the process of understanding. To merely observe that the field is chaotic, arcane, or incoherent is to decline the work of understanding. That rejection of the subject matter may be a fair and appropriate reaction: witness my colleagues who regard Federal Courts as a "mind game" or a "crossword puzzle." (Indeed, vast numbers bf laypersons have this reaction to the entire subject of law.) But assuming we accept the work of teaching Federal Courts, we must search for frameworks and coherencies as a necessary means of thinking about the subject. At the very least, we need heuristic devices. Over the years I developed a theory, an explanation of the proper basis for allocating cases to the state and federal courts and I have used this theory in class and in a number of articles. In applying this theory, I would receive and review the Supreme Court decisions, hang them out to dry on my framework, and see how they looked. Of course the decisions themselves provided the basis for the framework: this is always a two-way process. One could scarcely come up with a theory of federal courts that had nothing to do with the case law. A theory is refined out of the case law and other articles that have been refined out of the case law; the case law then is used to support the theory; the theory is turned back on the case law; and because of the process of refining the case law, the theory shows why some case law deserves praise and some demands criticism. This entirely circular, inbred process has gone on for so long, in so many diverse voices, and in such lofty and abstract terms that we can regard it as a culture and feel that it is a rather substantial thing-not at all embarrassing or ridiculous. So we operate within this culture and can continue to write articles ad infinitum in this mode.