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Introduction: Congressional control of jurisdiction and the future of the federal courts--opposition, agreement, and hierarchy

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59. See, e.g., Idaho v. Coeur d'Alene Tribe, 117 S. Ct. 2028 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996). See generally Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment and the Potential Evisceration of Ex parte Young, 72 N.Y.U. L. REv. 495 (1997). 60. 80 U.S. 128 (1871).

61. Cole, supra note 12, at 2489-2506.

62. Beginning with Professor Sager's Harvard Law Review Foreword, see supra note 13 and accompanying text, a substantial debate has ensued over whether the Constitution requires that at least

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one Article III court be able to consider "federal question" cases. Professor Sager's Foreword thus marked the start of a renaissance, in the 1980s, of consideration of Justice Story's views, expressed in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), that the Article III judicial power, or some portions of it beyond those within the Supreme Court's original jurisdiction, were mandatory and had to be vested in some Article III court. See Sager, supra note 13, at 34 (discussing Justice Story's argument for mandatory jurisdiction over constitutional questions); see also Akhil Reed Amar, A Neo-Federalist View of Article IIl: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 206 (1985) (arguing that one of Justice Story's interpretations of the mandatory nature of federal jurisdiction was correct); Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: Early Implementation of and Departures from the Constitutional Plan, 86 COLUM. L. REv. 1515, 1581-85 (1986) (arguing in favor of Story's broader interpretation of the mandatory scope of the judicial power). Akhil Amar's work was particularly important in elaborating what he called a two-tiered theory of the mandatory nature of the different prongs of subject matter jurisdiction. Amar argued that, where Article III refers to "all cases" arising under federal law or of admiralty law, some Article III court must have jurisdiction, but that where Article III refers to "controversies" (for example, between citizens of different states), the federal courts may or may not, at Congress's discretion, have jurisdiction. Amar, supra, at 209-10. Amar's work, while important, has not resolved the question: Daniel Meltzer has criticized Amar's reliance on the distinction between "cases" and "controversies" to support his claim for mandatory vesting of jurisdiction, and has questioned whether Congress could not, under Amar's thesis, eliminate federal habeas corpus for state court convictions. Daniel J. Meltzer, The History and Structure of Article III, 138 U. PA. L. REv. 1569, 1574-76, 1627 (1990) (suggesting that the term "cases" might have been used to indicate that both civil and criminal actions were included). John Harrison has more broadly argued that Congress's power, other than with respect to the original jurisdiction of the Supreme Court, is essentially plenary. John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article iII, 64 U. CHI. L. REv. 203, 209 (1997); see also William R. Casto, An Orthodox View of the Two-Tier Analysis of Congressional Control Over Federal Jurisidiction, 7 CONST. COMMENTARY 89 (1990). But see Robert J. Pushaw, Jr., Congressional Power over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. REv. 847 (proposing a revised approach based on Amar's thesis).

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