Intersystemic redundancy and federal court power: Proposing a zero tolerance solution to the duplicative litigation problem

Notre Dame Law Review

Volumn 75, Issue 4, 2000, Pages 1347-1376

  Redish, Martin H ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 0034423761     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (138)

1. The modern law of federal jurisdiction is dominated by judge-made rules, even though there exists a wide-ranging statutory network of regulations of federal jurisdiction. See generally Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles," 78 VA. L. REV. 1769 (1992).
2. See id. at 1769-71.
3. See infra Part II.
4. See infra Part II.
5. See infra Part III.
6. See infra Part III.
7. Some level of confusion may exist over exactly how to define the concept of parallel, overlapping litigation. See infra Part IV.B.
8. See infra Part III.B.
9. See infra Part III.B.
10. Later in this Article, I devote a section to a discussion of these criteria. See infra Part IV.A.
11. See infra Part II.
12. See infra Part II.
13. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); see also infra Part III.A.
14. 28 U.S.C. § 2283 (1994); see also infra Part III.B.
15. See infra Part III.C.
16. See MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER 47-85 (1991).
17. See infra Part IV.
18. See infra Part IV.
19. See, e.g., Colorado River Water Cons. Dist. v. United States, 424 U.S. 800 (1976); see also infra Part IIIA.
20. See, e.g., Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) (discussing presumption of concurrent jurisdiction of state and federal courts).
21. I explored this issue in detail in Martin H. Redish, Supreme Court Review of State Court "Federal" Decisions: A Study in Interactive Federalism, 19 GA. L. REV. 861 (1985).
22. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 514 (1962) (referring to "the historic acceptance of concurrent state and federal jurisdiction over cases arising under federal law").
23. See 28 U.S.C. § 1332 (1994).
24. See City of Chicago v. International College of Surgeons, 522 U.S. 156, 172-73 (1997) (stating that in deciding whether or not to assert supplemental jurisdiction, district courts should attempt to "serve the principles of economy, convenience, fairness and comity"); Quillen v. American Tobacco Co., 874 F. Supp. 1285, 1297 (M.D. Ala. 1995) (asserting supplemental jurisdiction where interests of judicial economy would be served).
25. See RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (1982). When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar . . . , the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Id. Numerous courts have employed the Restatements transactional analysis. See, e.g., Manego v. Orleans Bd. of Trade, 773 F.2d 1 (1st Cir. 1985); David J. McCarthy, Note, Preclusion Concerns as an Additional Factor When Staying a Federal Suit in Deference to a Concurrent State Proceeding, 53 FORDHAM L. REV. 1182, 1203 (1985) (describing purposes of resjudicata to include the avoidance of unnecessary and burdensome litigation and to conserve judicial resources).
26. See CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE § 1410.
27. See, e.g., In re Schimmels, 127 F.3d 875, 885 (9th Cir. 1997) (stating that res judicata is designed to avoid duplicative litigation).
28. See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).
29. See, e.g., University of Tenn. v. Elliott, 478 U.S. 788 (1986) (holding that federal common law rules of preclusion incorporate state issue preclusion rules in a federal suit brought after a state administrative adjudication arising from the same facts).
30. See RESTATEMENT (SECOND) OF JUDGMENTS § 16 (1982). Individual states have enacted statutes effectively creating the defense of other action pending. See, e.g., 735 ILL. COMP. STAT. 5/2-619(a) (West 1992) ("Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds . . . (3) That there is another action pending between the same parties for the same cause.") The provision was designed to avoid duplicative litigation. See A.E. Staley Mfg. Co. v. Swift & Co., 419 N.E.2d 23, 27 (Ill. 1980). It should be noted that the other action pending doctrine traditionally applies when both suits are in the same jurisdiction. When one suit is federal and the other suit is state, the doctrine almost certainly has been supplanted by the doctrine of Colorado River abstention, at least from the perspective of the federal court. See W.E. O'Neil Constr. Co. v. National Union Fire Ins. Co., 721 F. Supp. 984, 989 (N.D. Ill. 1989); see also infra Part IIIA.
31. Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. PITT. L. REV. 809 (1989); see also James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 STAN. L. REV. 1049, 1064 (1994) ("Many of the costs of duplicative litigation are selfevident. It is patently wasteful."); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PA. L. REV. 91, 123 (1998) ("[I]t is wasteful of both litigant and court resources for two courts to simultaneously conduct proceedings directed toward resolution of the same dispute.").
32. Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. PITT. L. REV. 809 (1989); see also James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 STAN. L. REV. 1049, 1064 (1994) ("Many of the costs of duplicative litigation are selfevident. It is patently wasteful."); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PA. L. REV. 91, 123 (1998) ("[I]t is wasteful of both litigant and court resources for two courts to simultaneously conduct proceedings directed toward resolution of the same dispute.").
33. Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. PITT. L. REV. 809 (1989); see also James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 STAN. L. REV. 1049, 1064 (1994) ("Many of the costs of duplicative litigation are selfevident. It is patently wasteful."); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PA. L. REV. 91, 123 (1998) ("[I]t is wasteful of both litigant and court resources for two courts to simultaneously conduct proceedings directed toward resolution of the same dispute.").
34. Freer, supra note 31, at 832.
35. Id. at 832-33.
36. Id. at 832. It should be noted that Professor Freer was speaking in a somewhat different context from that focused upon here. He spoke of the harms caused by duplicative litigation as support for an expansion of the use of the joinder devices contained in the Federal Rules of Civil Procedure. See generally id. However, this critique of duplicative litigation is equallly applicable here.
37. See, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM (2d ed. 1996).
38. Rehnquist, supra note 31, at 1064 (footnote omitted).
39. See id. at 1064-65.
40. Id. 1065.
41. In ruling on motions to transfer venue pursuant to 28 U.S.C. § 1404(a) (1994), the federal courts have generally begun their analysis with the presumption in favor of the plaintiff's choice of forum. See, e.g., Central Sports Army Club v. Arena Assoc., Inc., 952 F. Supp. 181 (S.D.N.Y. 1997); McKinney v. Southern Pacific Co., 147 F. Supp. 954 (S.D. Tex. 1957).
42. 28 U.S.C. § 1404(a) (1994).
43. See MARTIN H. REDISH & SUSANNA SHERRY, FEDERAL COURTS: CASES, COMMENTS AND QUESTIONS 712 (3d ed. 1998).
44. See FED. R. Civ. P. 23.
45. See 28 U.S.C. § 1335 (1994).
46. See FED. R. CIV. P. 22.
47. This fact is best illustrated by the judicial creation and expansion of the doctrine of "Our Federalism," pursuant to which a federal court is, under most circumstances, prohibited from enjoining or otherwise interfering with ongoing state proceedings. See, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982); Younger v. Harris, 401 U.S. 37 (1971).
48. See, e.g., Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); see also infra Part III.B.
49. 28 U.S.C. § 2283 (1994); see also infra Part III.B.
50. See id.; see also infra Part III.B.
51. See infra Part III.A.
52. 424 U.S. 800 (1976).
53. Id. at 817.
54. Id. at 818.
55. Compare Trent v. Dial Med., 33 F.3d 217 (3d Cir. 1994), and Arkwright-Boston Mfr. Mut. Ins. Co. v. City of New York, 762 F.2d 205 (2d Cir. 1985) (deferring to parallel state multi-party actions), with Ryan v. Johnson, 115 F.3d 193 (3d Cir. 1997) (refusing to stay federal action in favor of parallel state proceeding).
56. Compare Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978) (suggesting broad power of district courts to abstain in favor of parallel state actions under Colorado River, at least under certain circumstances), with Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (holding that Colorado River narrowly confines district court discretion to abstain in favor of parallel state proceeding). For a stinging attack on Colorado River abstention, see Linda Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 GEO. L.J. 99 (1986). Professor Mullenix refers to this form of abstention as "an invidious encroachment on the constitutional and statutory rights of federal litigants." Id. at 101. She characterizes Colorado River abstention as "merely a doctrine of judicial convenience that has no place in American jurisprudence." Id.
57. See, e.g., Will, 437 U.S. at 655 (authorizing abstention in favor of parallel state action).
58. See Moses H. Cone, 460 U.S. 1 (1983).
59. See, e.g., Ryan v. Johnson, 115 F.3d 193 (3d Cir. 1997); Elmendorf Grafica, Inc. v. D.S. America (East), Inc., 48 F.3d 46 (1st Cir. 1995); Burns v. Watler, 931 F.2d 140 (1st Cir. 1991).
60. In Moses H. Cone, the Supreme Court held that the presence of federal law issues is a factor to be considered weighing against abstention. See 460 U.S. at 26.
61. 28 U.S.C. § 2283 (1994). The current version of the statute was codified most recently in 1948. See MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 311-12 (2d ed. 1990).
62. 28 U.S.C. § 2283.
63. See Mitchum v. Foster, 407 U.S. 225 (1972), where the Supreme Court held that the civil rights statute, 42 U.S.C. § 1983 (1994), is an "expressly authorized" exception to the Anti-Injunction Act, even though on its face the statute says nothing about a federal court's power to enjoin an ongoing state judicial proceeding. "The test," the Court held, "is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." Id. at 238. In effect, the Court in Mitchum created an oxymoronic "implied express" exception. For a detailed criticism of this decision, see REDISH, supra note 59, at 316-24.
64. See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281 (1970).
65. It should be noted that even in civil rights cases in which Mitchum dictates that the "expressly authorized" exception applies, most of the time the federal court's authority to enjoin ongoing state proceedings will be confined by the judge-made doctrine of "Our Federalism," adopted initially in Younger v. Harris, 401 U.S. 37 (1971).
66. 260 U.S. 226 (1922).
67. The Court in Kline indicated that the federal court should apply principles of res judicata, "in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case." Id. at 230.
68. The in-aid-of-jurisdiction exception was included originally in the 1948 revision of the Anti-Injunction Act. See REDISH, supra note 59, at 312.
69. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641-42 (1977) ("Although the 'necessary in aid of exception to § 2283 may be fairly read as incorporating this historical in rem exception . . . , the federal and state actions here are simply in personam. . . . We have never viewed parallel in personam actions as interfering with the jurisdiction of either court.").
70. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950). In Mullane, the Court stated, Distinctions between actions in rem and those in personam are ancient and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. . . . [N]ew forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service was not required, and at other times have held personal service of process not required because the action was in rem. Id.
71. See Shaffer v. Heitner, 433 U.S. 186 (1977) (largely rejecting distinction, for jurisdictional purposes, between in rem and in personam cases, and holding that even assertions of traditional in rem jurisdiction must be measured by the modern minimum contacts test).
72. One such area concerns cases in which an order to compel arbitration has been sought in federal court. See, e.g., TranSouth Fin. Corp. v. Bell, 149 F.3d 1292 (11th Cir. 1998). Not all courts have agreed, however, that the in-aid-of-jurisdiction exception applies in this context. See generally Sternlight, supra note 31.
73. See supra Part III.B.
74. See supra Part III.A.
75. It is true that I have in the past argued that in interpreting statutes it is not appropriate for the courts to structure their interpretation in light of the courts' own normative considerations. Rather, the courts are bound by the intent of the legisla-ture, as manifested in the statutory text. See REDISH, supra note 16, at 29-46. However, here the Court is surely not adopting an interpretation that flows inexorably from the plain meaning of the text. To the contrary, the Court's interpretation pays precious little heed to the relevant text. In any event, the assumption that Congress would want wasteful duplicative litigation to go unpoliced is dubious.
76. See supra Part II.
77. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).
78. Criminal cases, as a category, may be excluded because of the doctrine of Younger v. Harris, 401 U.S. 37 (1971). See supra note 63.
79. In order to trigger the zero tolerance model, presumably the litigants would need to cross-move, one party seeking a stay of the federal action and the other an injunction prohibiting the parties from pursuing the state action. However, since the conduct of parallel litigation does not rise to the level of a jurisdictional issue, it is likely that the zero tolerance model could not be implemented absent initiating action by the parties.
80. See 28 U.S.C. § 1338(a) (1994).
81. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979) ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore never had an opportunity to be heard." (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940))).
82. The Act authorizes a federal injunction of a state court action "where necessary . . . to protect or effectuate its judgments." 28 U.S.C. § 2283 (1994).
83. See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281 (1970) (determining applicability of relitigation exception by first determining whether principles of res judicata controlled).
84. See FED. R. Civ. P. 23(b)(1)(A) (allowing class actions when the prosecution of separate actions would create a risk of "inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class").
85. See FED. R. CIV. P. 23 advisory committee's notes; Supreme Tribe v. Cauble, 255 U.S. 356 (1921).
86. See Declaratory Judgment Act, 28 U.S.C. § 2201 (1994).
87. Recognition of this danger should caution both the litigants and the court to aggressively draw on one or more of the numerous multi-party joinder devices authorized in the Federal Rules of Civil Procedure, in order to avoid either unfairness to the future litigants or harm to the federal court's judgment. See FED. R. CIV. P. 18-24. See generally Freer, supra note 31 (urging more aggressive use of multi-party joinder devices). Effective use of such procedures would moot the delicate relitigation exception issues discussed in the text.
88. 546 F.2d 84 (5th Cir. 1977).
89. See id. at 97-101; see also Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) (defining "virtual representation" as the precept that "a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative").
90. See generally Freer, supra note 31 (arguing for broad view of joinder rules in order to avoid such anomalous and unfair results).
91. 28 U.S.C. § 1367 (1994).
92. See, e.g., Moore v. New York Cotton Exch., 270 U.S. 593 (1926).
93. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
94. For a detailed discussion, see LINDA MULLENIX ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION §§ 5.04-.06 201-14 (1998).
95. See 28 U.S.C. § 1367 (1994).
96. See Mullenix et al., supra note 93, at 209. The reason that the statutory drafters chose to tie supplemental jurisdiction to the outer reaches of a constitutional case is that long ago, the Supreme Court, in an opinion by Chief Justice Marshall, had rationalized the constitutionality of the extension of federal court jurisdiction over parties and claims that did not, standing alone, fall within the categories of cases enumerated in Article III, Section 2 of the Constitution by reasoning that Article III extended the federal judicial power to all "cases" arising under federal law, and that state law claims which arise in the course of the federal adjudication were part of the same case to which the federal judicial power had been extended. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). But while inclusion of the dependent claim within the concept of a constitutional case rationalizes the assertion of supplemental jurisdiction, it in no way automatically follows that this rationale provides the most helpful linguistic or doctrinal formulation of the standard.
97. See infra Part V.
98. See id.
99. See id.
100. See id. It should be noted, however, that this fact in no way precludes informal consultation with the state court prior to the federal court's rendering a final decision on the issue of abstention or injunction.
101. 28 U.S.C. § 1291 (1994).
102. See Catlin v. United States, 324 U.S. 229 (1945).
103. 460 U.S. 1 (1983); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996).
104. Moses H. Cone, 460 U.S. at 11 n.11 (quoting Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2 (1962) (per curiam)).
105. Id.
106. Quackenbush, 517 U.S. at 713.
107. See, e.g., id.; Gillespie v. United States Steel Corp., 379 U.S. 148 (1964). See generally Martin H. Redish, The Pragmatic Approach to Appealability in the Federal Courts, 75 COLUM. L. REV. 89 (1975).
108. Moses H. Cone, 460 U.S. at 11-12 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). This doctrine was established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
109. Moses H. Cone, 460 U.S. at 12.
110. Id.
111. Cf. Fed. R. Civ. P. 23(f) (authorizing interlocutory appeal of an order denying class certification).
112. See supra Part III.
113. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
114. See supra Part II.
115. See Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984); see also Redish, supra note 16.
116. It should be noted that respected commentators have vigorously differed with this view. See Rehnquist, supra note 31; David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985); Michael Wells, Why Professor Redish Is Wrong About Abstention, 19 GA. L. REV. 1097 (1985).
117. It should be noted that respected commentators have vigorously differed with this view. See Rehnquist, supra note 31; David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985); Michael Wells, Why Professor Redish Is Wrong About Abstention, 19 GA. L. REV. 1097 (1985).
118. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996).
119. 28 U.S.C. § 2283 (1994); see also supra Part III.B.
120. See, e.g., Younger v. Harris, 401 U.S. 37 (1971).
121. See supra Part II.
122. So construed, the in-aid-of-jurisdiction exception to the Anti-Injunction Act would parallel the interpretation currently given to the relitigation exception. See supra Part III.B.
123. See MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 331-36 (2d ed. 1990).
124. See supra Part IV.
125. See, e.g., Moore v. Sims, 442 U.S. 415 (1979).
126. For example, the Supreme Court has held that 42 U.S.C. § 1983 (1994), the federal civil rights law, is an expressly authorized exception to the Anti-Injunction Act. See Mitchum v. Foster, 407 U.S. 225 (1972). Yet, it is in cases brought pursuant to § 1983 that the Court has imposed judge-made limits under principles of federalism and comity. See, e.g., Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
127. For detailed critiques of the political and constitutional policies underlying judge-made principles of comity and judicial federalism, see Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977), and MARTIN H. REDISH, The Doctrine of Younger v. Harris: Deference in Search of a Rationale, 63 CORNELL L. REV. 463 (1978).
128. For detailed critiques of the political and constitutional policies underlying judge-made principles of comity and judicial federalism, see Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977), and MARTIN H. REDISH, The Doctrine of Younger v. Harris: Deference in Search of a Rationale, 63 CORNELL L. REV. 463 (1978).
129. See Neuborne, supra note 125; Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329 (1988).
130. I do not mean to suggest that this issue is free from controversy. On the contrary, a number of respected scholars have supported the concept of parity. See, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233 (1988); Michael E. Solomine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983). I have chosen not to discuss this issue in detail in this Article for two reasons. First, I have examined the issue in a number of other writings. See, e.g., Redish, supra note 125. Second, for reasons about to be discussed, the issue of parity is probably not of significant relevance to the application of the zero tolerance model.
131. I do not mean to suggest that this issue is free from controversy. On the contrary, a number of respected scholars have supported the concept of parity. See, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233 (1988); Michael E. Solomine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213 (1983). I have chosen not to discuss this issue in detail in this Article for two reasons. First, I have examined the issue in a number of other writings. See, e.g., Redish, supra note 125. Second, for reasons about to be discussed, the issue of parity is probably not of significant relevance to the application of the zero tolerance model.
132. Such a view would be consistent with positions I have taken in the past. See REDISH, supra note 59; REDISH, supra note 16; REDISH, supra note 1; REDISH, supra note 21.
133. This would be a proper application of Judge Schwarzer's suggested method of informal state-federal judicial interaction. See William W. Schwarzer et. al., Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts, 78 VA. L. REV. 1689, 1734-35 (1992).
134. My personal preference would be for an approach similar to the one I have previously suggested for determining whether a federal court should invoke its power to enjoin parallel state litigation under the "in-aid-of-jurisdiction" exception to the Anti-Injunction Act. See REDISH, supra note 59, at 331-36. Alternatively, one might choose to employ the six-factor analysis which the Supreme Court described initially in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), and expanded subsequently in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983).
135. See supra Part III.A.
136. See supra Part III.B.
137. See supra Part IV.
138. See supra Part IV.