Institutional Competency: Some Reflections on Judicial Activism in the Realm of Forum Allocation Between State and Federal Courts

Recently, an eminent scholar proposed that issues of institutional competency are related to legal doctrines controlling access to courts. That scholar theorized that federal courts could properly fashion forum allocation "principles" from considerations of institutional competence. Professor Fischer discusses, in a critical vein, the necessary assumptions underlying that theory. He develops the argument that consideration of issues of institutional competence by the judiciary not only represents an unwarranted intrusion into the power and prerogative of Congress, but also is damaging to the judiciary as a public institution.