Hohfeld Returns to the Supreme Court — Ted Sichelman

Post by Ted Sichelman

After more than a 25-year hiatus, Wesley Hohfeld—one of the preeminent private law theorists of the 20th century—has been cited by Justice Thomas in dissent earlier this week in Heffernan v. City of Paterson (thanks to Shyam Balganesh for the heads up), a case involving the alleged deprivation of free speech rights of a city police officer.

Interestingly, Justice Thomas relied on Hohfeld to counter an assertion by the majority that the First Amendment differs from others in the Bill of Rights—for instance, the Fourth Amendment—by focusing on proscribed governmental activity more than the protected actions of citizens. Justice Thomas, invoking the Hohfeldian typology and its principle of correlativity, characterized the entire Bill of Rights as presenting limitations on the “power” of Congress, resulting in corresponding “immunities” on the part of the public (cf. recent work by John Harrison). For this and related reasons, in Justice Thomas’s view—other factors aside—standing issues in the case-at-hand were no different from those under the Fourth Amendment or any other provision in the Bill of Rights.

Such a distinction calls to mind the Supreme Court’s use of Hohfeld in another First Amendment case, Flast v. Cohen (1968), in which ordinary, private taxpayers challenged the use of federal funds to purchase textbooks and other materials for religious schools. Here, Justice Harlan in dissent adopted the Hohfeldian terminology (by way of Louis Jaffe) to distinguish “Hohfeldian” plaintiffs—ones who challenge the validity of their own, personal (there, tax) obligations—from “non-Hohfeldian” plaintiffs—who complain not as individuals but as “private attorneys-general” vindicating public rights. Although Justice Harlan did not rely on this distinction to categorically reject standing for the non-Hohfeldian plaintiffs in Flast, he used it as an analytical entrée into a policy-based discussion of why such plaintiffs should not have standing.

In my mind, there are three important takeaways from these cases.

First, Hohfeldian analysis can clarify thinking about a wide range of thorny legal issues, not just in private law but also in public law (with “the State” serving as a coherent Hohfeldian actor).

Second, Hohfeldian analysis does not ipso facto solve policy problems. Rather, it aids in the construction of a proper frame in which to address policy concerns in adjudication when legal sources do not otherwise “dictate” a particular outcome. For instance, in Flast and Heffernan, when the State acted outside its scope of authority, it was ultimately a policy determination as to whether the private plaintiffs in these cases had standing, because—contrary to Justice Thomas’s implicit view in deciding Heffernan’s claim—the Constitution and other legal sources did not yield a singular resolution.

Third, and consistent with the second point, Hohfeldian analysis does not point in one political direction or another. Although the realists and CLS scholars have relied heavily upon Hohfeld’s work to critique formalism and anti-progressive doctrine, as the above two cases illustrate, it can be properly invoked just as much from contrary political viewpoints. Perhaps it is better to characterize Hohfeldian analysis as structurally “exposing” the contours of political and policy gaps in adjudication rather than substantively informing outcomes.

In the very least, it is refreshing to see Hohfeld back in play at “the first Court still sitting.”

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