From Columbia Law Review, by Henry Paul Monaghan
Al Hill died on December 5, 2015 at the age of 98, outlasting most of his contemporaries. Al had taken senior status when I came to Columbia Law School, and I succeeded him in the course on federal courts. The little I saw of Al left me with the firm impression of a warm, gentle, affable, caring human being. I did, however, know Al’s work quite thoroughly. And while a memorial is no occasion for an extended review of Al’s long and distinguished academic career, I would like to draw attention to a particularly shining period: Al’s contributions to federal courts scholarship during the decades between the late 1950s and early 1980s. Al’s writings during that period solidified his reputation as a federal courts grandmaster.
The 1953 publication of Hart & Wechsler, The Federal Courts and the Federal System, was the heart and soul of the federal courts tradition. Professor Akhil Amar’s splendid 1988 review (ostensibly of the third edition) put the matter nicely: “What can you say about a thirty-five-year-old casebook that still lives? That its first edition was beautiful and brilliant—probably the most important and influential casebook ever written.” Amar collected the many glowing tributes paid to the first edition. Hart & Wechsler has had an enormous grip in shaping the thinking of law students, professors, and judges. They became the “People of the Book,” as one observer wittily noted. Al Hill was a towering figure in this tradition, a tradition that was particularly vibrant here and at Harvard. Much of Al’s agenda was an attempt to work out the implications of the Supreme Court’s then none-too-distant decision in Erie v. Tompkins. Hill wrote essays on Erie and the constitution, and Erie and bankruptcy. The former was an effort to ground Erie in the constitution (a view which I share) and not in some unmoored, judicially fashioned conception of choice of law. In his bankruptcy essay, Hill demonstrated that bankruptcy provided no occasion for a freestanding federal judicial authority to disregard interests created by state law. And in an article on Federal Employers’ Liability Act suits in the state courts—a rather burning topic back then—Hill argued (contrary to Henry Hart) that Congress could properly impose federally derived remedial provisions on the state courts.
Al also wrote an extremely influential article on federal preemption of state law. There he argued that, except with respect to certain federal enclaves, state law provided the applicable rule of decision unless Congress had provided otherwise. This was a direct challenge to more embracing conceptions of federal judicial common law-making. Al’s 1969 article, Constitutional Remedies, was very widely noticed. He explored the possibility of the Constitution itself providing remedies against governmental interference with constitutionally protected interests, anticipating the issues raised by the Bivens doctrine. And Al wrote two insightful articles on the extent to which the Supreme Court would be barred from reviewing state court decisions on matters of federal law. One dealt with the inadequate state ground doctrine and the other with the forfeiture of constitutional rights in criminal cases.
This gives the reader at least a sense of the energy and range that Al possessed. And Al’s intellectual interests were more wide-ranging than federal courts. He was a major contributor to the then-challenging field of conflict of laws. He also wrote a very influential article on defamation and the First Amendment. Each of the articles mentioned is a significant contribution to the topics it addressed.
Al continued to write long after his retirement, but the period I have focused on was a particularly important one. In my Tribute to Al, I wrote “Al Hill was and is a teacher to many great professors, students, and lawyers, including those who never once have set foot inside Columbia Law School. I have been among that group, and I wish to say, thank you. And so, thank you, but not good bye!” Now, sadly, it is time to say goodbye.