Lost at Sea: The Continuing Decline of the Supreme Court in Admiralty

46 Pages Posted: 16 Sep 2016 Last revised: 21 Sep 2017

See all articles by Michael Sevel

Michael Sevel

The University of Sydney Law School

Date Written: September 16, 2016

Abstract

For the first two hundred years of its history, the United States Supreme Court served as the primary leader in the development of, and its cases the primary source of, the admiralty and maritime law of the United States. That appears to be changing. The Court’s admiralty cases over the last quarter century indicate that it is slowly giving up its traditional leading role in creating and developing rules of admiralty law, and instead deferring to Congress to make those rules, a trend that is tantamount to abandoning its Article III constitutional duty to serve as the country’s only national admiralty court. Some scholars believe that this trend is just as it should be. It has been recently argued that the Court’s two centuries of federal common lawmaking in admiralty is, and always has been, unconstitutional, and ought to be curtailed with few exceptions. Federal admiralty law should therefore be “normalized” and brought into conformity with the same principles of federalism and separation of powers which govern most other areas of federal law. This article examines the Court’s most recent admiralty case, Lozman v. City of Riviera Beach, Florida, and argues that it represents a striking escalation in the Court “normalizing” federal admiralty law. The many objectionable features of Lozman, however, constitute a pragmatic argument against the Court adopting a normalization approach. In largely ignoring hundreds of years of its own cases, the Court’s reasoning was arbitrary, unpredictable, and provides virtually no guidance to the lower state and federal courts. Properly understood, the case justifies a return to the Court’s traditional, constitutionally prescribed role of making rules of decision in admiralty in the manner of a common law court.

Keywords: admiralty and maritime law, federalism, separation of powers, vessel, constitutional law, Supreme Court, federal courts

JEL Classification: K10, K30, K39, K1

Suggested Citation

Sevel, Michael, Lost at Sea: The Continuing Decline of the Supreme Court in Admiralty (September 16, 2016). University of Miami Law Review, Vol. 71, No. 4, pp. 938-986, 2017, Sydney Law School Research Paper No. 16/85, Available at SSRN: https://ssrn.com/abstract=2839656

Michael Sevel (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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