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Rereading "The Federal Courts": Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)


Annette Kolodny tells us that:

we read well, and with pleasure, what we already know how to read; and what we know how to read is to a large extent dependent upon what we have already read (works from which we developed our expectations and our interpretative strategies).

Can we do otherwise? Or are we forever trapped in the story of "the Federal Courts"—as told to us first by Felix Frankfurter, James Landis, Wilber Katz, and Harry Shulman, then by Henry Hart and Herbert Wechsler, now by Paul Bator, Paul Mishkin, Daniel Meltzer, and David Shapiro, with slight variations on these themes offered by casebook and treatise writers such as David Currie, Mark Tushnet, Howard Fink, John Jeffries, Peter Low, Martin Redish, Charles Alan Wright, Richard Posner, and Erwin Chemerinsky? Are we inevitably and irretrievably locked in what Richard Fallon characterizes as an "oedipal" struggle?

I am neither father nor son, so it is not surprising that I don't feel "in" the story. Of equal importance, I have a very different story to tell about "the Federal Courts" and its subject matter, texts, and subtexts, its ideas, and its contemporary work. What follows is a brief overview .

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