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Horne on Land and Water Disputes Between States & the Supreme Court's Remedial Power

By Lawrence Solum

Jonathan Horne (New York University - School of Law) has posted On Trying and Failing to Resolve Interstate Disputes (New York University Journal of Law & Liberty, Vol. 5, No. 3, 2011) on SSRN. Here is the abstract:

The Supreme Court of the United States bills itself as an appellate tribunal whose function is to resolve issues of federal law. That is accurate ? for the most part. For even today, the Supreme Court still hears trials as a Court of Original Jurisdiction, where it primarily resolves interstate disputes relating to sovereignty over land or water.

Almost invariably, writers assume that the Court has authority under its Original Jurisdiction Clause to actually award the land or water at issue. However, this Article argues that the Court has no direct constitutional authority to award the land or water in Original Jurisdiction cases. Rather, the Court has direct constitutional authority to remedy breaches of interstate peace. The Court may, as a prophylactic remedy, award the land or the water. But expansive prophylactic remedies are disfavored, as they prevent much conduct that is constitutionally permissible. To establish the appropriateness of such a remedy, facts must exist which show that the remedy is required to prevent further breaches of defendant?s duty, that less intrusive forms of equitable relief would be futile, and that even granting these points the injunction is not too intrusive.

The Article further argues that, at least in the case of interstate water disputes, the presumption cannot be rebutted. Far from preventing interstate aggression, the Court's resolution of the disputes induces the states to take aggressive measures to protect themselves against a threat of suit. Further, the Court?s resolution discourages states from resolving the disputes themselves, rather than having the Court resolve it for them. The Article concludes that, at least in the case of interstate water rights, the Court's decision to actually allocate is both unwise and contrary to the grant of Original Jurisdiction.

Full post as published by Legal Theory Blog on June 07, 2010 (boomark / email).