by Joseph Zimmerman. Albany, NY: SUNY Press, 2006. 231pp. Hardback. $60.00. ISBN: 9780791468333.
Reviewed by Peter J. Galie, Department of Political Science, Canisius College. Email: galie [at] canisius.edu.
In this work, Joseph Zimmerman, Professor of Political Science at the University of Albany, State University of New York, continues his examination of neglected dimensions of federalism. In 1996, his work, INTERSTATE RELATIONS: THE NEGLECTED DIMENSION OF FEDERALISM, examined federalism from the vantage point of interstate relations. His purpose there was to demonstrate the need for new approaches to resolve disputes between states and to promote economic development for the benefit of citizens of all states. He concluded with a model and recommendations for improved interstate relations. One of the neglected dimensions examined was the Supreme Court’s role as a referee in interstate disputes. In INTERSTATE DISPUTES, Zimmerman, noting the absence of any monograph on the subject, concentrates exclusively on the cases in which the Supreme Court has exercised its original jurisdiction in settling interstate conflict.
Zimmerman introduces his analysis of the original jurisdiction provision of Article III with a background and overview chapter. He examines pre-constitutional experience, including disputes under the Articles of Confederation as well as those during the Revolutionary War, the defects of the Articles, the debates at the Constitutional Convention, and treatment of the topic in the Federalist Papers. He concludes the chapter with a brief look at the original jurisdiction clause as it pertains to ambassadors, ministers and consuls. This jurisdiction, though seldom invoked, must comport with the law of nations when it is exercised.
The work proceeds with an examination of the criteria the Court has fashioned over its history in determining whether its original jurisdiction should be invoked. A chapter is devoted to the Court’s use of Special Masters. Chapters Four through Six are devoted to specific issues in contention: boundary disputes, mostly over rivers; suits involving escheat by two or more states of unclaimed property and taxation disputes; major water conflicts, including allocation, diversion and pollution; and a miscellaneous chapter devoted to unique decisions such as the pre-Civil War debt of Virginia, quarantines, and the electoral college voting system. The last chapter describes and analyzes the mechanism available for resolving controversies between sister states.
After the Court struck down the 1789 Judiciary Act provision making the Supreme Court’s original jurisdiction exclusive, it decided to exercise its original jurisdiction over interstate controversies on a discretionary basis and fashioned three criteria to determine [*298] whether its jurisdiction should be invoked: is the complaining state a real or nominal party; does a justiciable controversy exist; and is the dispute an appropriate one for the court to adjudicate.
Once the Court assumes jurisdiction, it appoints a Special Master to collect evidence, make actual determinations, and prepare a report for the Court. Zimmerman presents a detailed look at the origin of their use (English Chancery Courts); how they are appointed (the Constitution is silent on the subject of Special Masters); and fees and expenses. He concludes the chapter with criticism that has been leveled at the use of this procedure.
Chief Justice Rehnquist raised questions about Special Masters in a 1981 dissenting opinion (MARYLAND v. LOUISIANA, 451 U.S. 725, at 761). Because their use is dictated by the fact that the Court lacks the time to conduct fact finding, the Court would be better served by trials in lower courts. Building on Rehnquist’s argument, other critics have noted that resort to Special Masters bypasses traditional characteristics of the trial process such as adversarial testing of evidence, presentation of witnesses by parties, and multi-layered review, among others.
Zimmerman reaches two conclusions on the basis of his examination of the cases in his four categories. He believes that the crowded docket makes it imperative that the Court exercise its jurisdiction only when confronted with a “major interstate controversy” (p.108). The second conclusion, drawn primarily from his analysis of the continuing disputes over interstate waters, is that the Court is not the “appropriate body to resolve such controversies” (p.142).
Having raised serious questions about the efficacy of the Court’s handling of these disputes, Zimmerman concludes with an examination of the alternative dispute resolution proposals. He lists four: (1) granting concurrent jurisdiction to U.S. District Courts or create a new court with limited jurisdiction; (2) increasing the size of the Supreme Court; (3) preempt regulatory authority of states in the particular fields where disputes have re-occurred; (4) encourage states to enact interstate and federal state compacts creating commissions with authority to issue regulations superseding member state regulations and to resolve disputes. He thinks that the first two are not viable candidates. A review of three other specialized courts created by Congress under Article III powers, the Court of Appeals for the Federal Circuit, the Court of International Trade, and the now defunct Commerce Court, lead him to agree with other critics that their disadvantages outweigh their advantages. In any case, it is unlikely that Congress would create such a Court. As to increasing the number of justices on the Court, that is even less likely.
Zimmerman believes that three and four offer better possibilities. Congress could draft a statute designed to prevent interstate controversies as a preemption statute with an “opt out” provision allowing state legislatures to exclude the state from coverage. He thinks it “improbable” that state legislatures [*299] would opt out of a law aimed at strengthening the national economy or achieving some other important public policy objective. The fourth alternative, encouragement of interstate compacts, can be achieved if Congress were to take four specific actions: grant blanket consent in advance to states to enter into and amend compacts; offer grants-in-aid to states to conduct research on the major interstate issues facing them and draft and enact compacts; enact contingent preemption statutes to encourage adoption compacts in areas that have involved disputes; and direct relevant federal departments and agencies to work with concerned state governments toward solving problems.
Zimmerman concludes with the question, “How adequately do the two current theories of United States Federalism explain interstate relations” (p.174)? Dual federalism, noted in Chapter One, explains our status as a compound republic, but says little about interstate relations. Cooperative federalism, on the other hand, does provide a basis for understanding interstate relations, and the role of operating interstate compacts and formal and informal administrative agreements epitomize that understanding. This work exhibits the solid scholarship we have come to expect from Professor Zimmerman. Written from the perspective of traditional doctrinal analysis, it is public policy advocacy in the best tradition of the discipline of Political Science.
Zimmerman, Joseph. 1996. INTERSTATE RELATIONS: THE NEGLECTED DIMENSION OF FEDERALISM. Westport, CT: Praeger.
MARYLAND v. LOUISIANA, 451 U.S. 725 (1981).
© Copyright 2007 by the author, Peter J. Galie.