Abstract
The current Supreme Court has made clear that history matters. But doing history well is hard. There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers. This Article warns against that allure by showing how the use of old cases also poses methodological challenges. The Article uses as a case study the emerging doctrine of foreign relations abstention. Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases. Those advocates did not, however, canvass the early admiralty practice, relying instead on just a few citations and cherry-picked quotations. And even if they had correctly identified the historical admiralty practice, they did not explain their logic for linking that practice to today’s doctrinal landscape. This Article tackles both problems. It draws on around 130 admiralty cases to paint a more complete picture of the admiralty courts’ jurisdictional discretion. Of greatest relevance to today’s debates, the discretion to dismiss admiralty cases was limited to disputes involving no U.S. parties, and the views of foreign states were not dispositive. The Article then considers how advocates and judges could make use of those admiralty cases today. Old cases might be precedent that directly supports foreign relations abstention, original law that permits foreign relations abstention, or lived experience that helps justify foreign relations abstention. Proponents seem to have in mind the first two uses of the historical admiralty practice, but only the third lends support to the emerging doctrine of foreign relations abstention. Forthrightly embracing that third approach, however, would put foreign relations abstention at odds with the Supreme Court’s efforts to constrain prudential discretion in other contexts. The Article does not try to choose among these different logics, nor does it critique the Court’s antiprudential turn. Rather, it uses the debate over foreign relations abstention to illustrate how different approaches to historical caselaw can result in vastly different legal conclusions, and it warns against deploying a patina of doctrinal history to hide the very same judicial lawmaking that the Supreme Court has elsewhere care-fully disclaimed.
Recommended Citation
Maggie Gardner,
Admiralty, Abstention, and the Allure of Old Cases,
99
Notre Dame L. Rev.
881
().
Available at:
https://scholarship.law.nd.edu/ndlr/vol99/iss3/2