Rachel Bayefsky (University of Virginia School of Law) has posted Tradition and the Federal Judicial Power (Stanford Law Review (forthcoming 2027)) (32 pages) on SSRN. Here is the abstract:
Tradition is most well known today for starring in blockbuster Supreme Court cases about controversial social issues, notably abortion and firearms. But tradition also plays a role, less visible but highly significant, in cases shaping the federal judicial power. This Essay identifies and critically analyzes the Court’s traditionalist turn in several settings implicating federal judicial power, including Article III standing, the breadth of equitable relief, the division of labor between Article III and non-Article III federal tribunals, and state sovereign immunity. I argue that the Court’s traditionalist turn implicitly privileges a certain vision of a civil lawsuit—the individualized dispute among private parties—as the model against which the legitimacy of federal court litigation is to be assessed. I propose a more capacious view of tradition permitting courts to recognize traditions that do not follow the private suit pattern but are nevertheless rooted in longstanding practice.
Posted at 6:04 AM