The federal "claim" in the district courts: Osborn, Verlinden, and protective jurisdiction

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1731-1774

  Vázquez, Carlos M ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 38949173478     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (256)

1. Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157 (1953).
2. Id. at 170.
3. Id. at 171 (emphasis in original). He nevertheless opted to use the "more conventional term 'federal question'" in his article.
4. Id. at n.61.
5. Id. at 168-76.
6. 22 U.S. 738 (1824).
7. Id. at 824.
8. 461 U.S. 480 (1983).
9. Id. at 492-94.
10. Osborn, 22 U.S. at 738.
11. 22 U.S. 904 (1824).
12. Osborn, 22 U.S. at 745.
13. Id. at 819.
14. Id. at 820-22.
15. Id. at 821-23.
16. Id. at 823-24.
17. Id. at 824.
18. Textile Union Workers v. Lincoln Mills of Ala., 353 U.S. 448, 482 (1957) (Frankfurter, J., dissenting).
19. Id. at 471 (Frankfurter, J., dissenting).
20. Verlinden, 461 U.S. at 492.
21. Id.
22. Id. at 493.
23. Osborn, 22 U.S. at 827.
24. Id. at 884 (Johnson, J., dissenting).
25. Id. (Johnson, J., dissenting).
26. Id. at 874 (Johnson, J., dissenting) (emphasis in original).
27. Id. at 889 (Johnson, J., dissenting).
28. Am. Well Works Co. v. Layne & Bowler, 241 U.S. 257, 260 (1916).
29. T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964).
30. Osborn, 22 U.S. at 871.
31. Id. at 823.
32. Id.
33. Lincoln Mills, 353 U.S. at 475.
34. Osborn, 22 U.S. at 823.
35. Id. at 887-88.
36. Id. at 888.
37. Id.
38. See Mishkin, supra note 1, at 165.
39. 461 U.S. 480 (1983).
40. Verlinden B.V. v. Central Bank of Nig., 647 F.2d 320 (2d Cir. 1981).
41. Verlinden B.V. v. Central Bank of Nig., 488 F. Supp. 1284 (S.D.N.Y. 1980).
42. Verlinden, 461 U.S. at 492.
43. Id. at 493-94.
44. 28 U.S.C. § 1605 (2000).
45. Id.
46. See Eric J. Segall, Article III as a Grant of Power: Protective Jurisdiction, Federalism and the Federal Courts, 54 FLA. L. REV. 361, 381 (2002).
47. FED. R. CIV. P. 11.
48. Verlinden, 461 U.S. at 493.
49. 28 U.S.C. § 1604 (2000).
50. Id. § 1605(a)(1).
51. See JOSEPH W. DELLAPENNA, SUING FOREIGN GOVERNMENTS AND THEIR CORPORATIONS 454 (Transnational Publishers 2d ed. 2003).
52. See generally R. FALLON, D. MELTZER & D. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1409 (5th ed. 2003).
53. This argument is developed in Carlos M. Vázquez, Comment, Verlinden B.V. v. Central Bank of Nigeria: Federal Jurisdiction Over Cases Between Aliens and Foreign States, 82 COLUM. L. REV. 1057 (1982)
54. [hereinafter Vázquez, Federal Jurisdiction Over Cases Between Aliens and Foreign States].
55. See, e.g., Schooner Exchange v. McFaddon, 11 U.S. 116 (1812);
56. Berizzi Bros. Co. v. Steamship Pesaro, 271 U.S. 562 (1962).
57. Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of State, to Attorney General, 26 Dept. State Bull. 984-85 (May 19, 1952), reprinted in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 711-15 (1976).
58. See Verlinden, 461 U.S. at 487.
59. 28 U.S.C. §§ 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611 (1976).
60. See 28 U.S.C § 1605(a)(7).
61. To be clear: I am not suggesting that, to prevail in a suit against a foreign state, it is sufficient for the plaintiff to establish that his case falls within one of the exceptions to foreign sovereign immunity contained in § 1605. That section merely removes the barrier of immunity, subjecting the foreign state to liability under some other law. My point, however, is that the removal of the immunity barrier can be said to have created the claim against the state in the sense that, without it, the claim could not be maintained.
62. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 111, editors' note 3 (1987). See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964)
63. (citing with approval Philip Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 AM. J. INT' L L. 730 (1939));
64. The Paquete Habana, 175 U.S. 677, 700 (1900).
65. See Republic of Aus. v. Altmann, 541 U.S. 677, 689-90 (2004)
66. (citing Arias v. S. S. Fletero, Adm. No. 7492 (E.D. Va. 1952)).
67. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997);
68. Ernest L. Young, Sorting Out the Debate Over Customary International Law, 42 VA. J. INT'L L. 365, 392-94 (2002)
69. [hereinafter Young, Sorting Out the Debate].
70. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004).
71. But cf. Curtis A. Bradley, Jack L. Goldsmith, and David H. Moore, Sosa, Customary International Law and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 873 (2007).
72. Cf. Curtis A. Bradley and Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH. L. REV. 2129, 2162 (1999) (post-Erie law of foreign sovereign immunity was "federal law by virtue of a political-branch authorization").
73. Verlinden B.V. v. Central Bank of Nig., 647 F.2d 320, 328 n.21 (2d Cir. 1981).
74. Verlinden, 461 U.S. at 493.
75. For amplification, see Vázquez, Federal Jurisdiction Over Cases Between Aliens and Foreign States, supra note 52. Of course, the FSIA confers on foreign states a jurisdictional immunity - i.e., an immunity from being sued in court.
76. See 28 U.S.C. § 1604. The question is whether it does only this, or whether it also confers an immunity from liability.
77. Cf. 28 U.S.C. § 1606 (arguably recognizing an immunity from liability coextensive with the state's immunity from suit).
78. See also infra note 132.
79. See The Western Maid, 257 U.S. 419 (1922).
80. See Altmann, supra note 60. For a discussion of this case,
81. see Carlos M. Vázquez, Altmann v. Austria and the Retroactivity of the Foreign Sovereign Immunities Act, 3 J. OF INT'L CRIM. JUSTICE 207 (2005).
82. See infra notes 70-71.
83. See DELLAPENNA, supra note 50, at 661;
84. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000);
85. In re Delta America Re Ins. Co., 900 F.2d 890, 893 (6th Cir. 1990).
86. H.R. REP. NO. 94-1487 at 6612, 6631;
87. DELLAPENNA, supra note 50, at 661.
88. In a series of cases discussed in Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 CALIF. L. REV. 1775 (2007)
89. [hereinafter Young, Stalking the Yeti], courts have relied on such policies in holding that federal jurisdiction exists under the general federal question statute in cases implicating foreign relations. I agree with Professor Young that these cases are unpersuasive as an interpretation of those statutes, in the light of such judicially developed glosses as the well-pleaded complaint rule. But, in my view, there is no question that Congress could confer federal jurisdiction in such cases.
90. See, e.g., Mesa v. California, 489 U.S. 121 (1989).
91. 28 U.S.C. § 1605 (a)(2).
92. See Osborn, 22 U.S. at 887-88.
93. 28 U.S.C. § 1441 (2000).
94. Id. § 1331.
95. In many cases, one might say that the purpose of allowing defendants to remove when the plaintiff has a federal claim is instead to promote uniformity in the interpretation of federal law. This purpose is advanced, however, only when there is a dispute about the meaning of federal law. Yet, as we have seen, original jurisdiction exists under § 1331 where the plaintiff's claim is based on federal law, even if there is no disputed issue of federal law. Allowing the defendant to remove such a case from state to federal court can only serve the purpose of providing a forum that is less hospitable to the federal rights involved.
96. Lincoln Mills, 353 U.S. at 471 (Frankfurter, J., dissenting).
97. Pub. L. No. 95-393, 92 Stat. 808 (1978).
98. Taft-Hartley Act, Pub. L. No. 80-101, 61 Stat. 136, § 301 (1947)
99. (codified as amended at 29 U.S.C. §§ 141-196 (1994)).
100. Lincoln Mills, 353 U.S. at 457.
101. S. 1980, 91st Cong. (1969),
102. reprinted in 115 CONG. REC. 10, 460-61 (1969).
103. See infra text accompanying notes 100-107.
104. Pub. L. No. 107-42, 115 Stat. 230, § 408(b)(1), (2) (2001). The "unless" clause does not seem to add anything to the Supremacy Clause unless "inconsistent with" is construed as broader than "preempted by." The Act also imposes a damage cap as a matter of federal law.
105. Id. § 408(a).
106. Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 LAW & CONTEMP. PROBS. 216, 224-25 (1948).
107. Id. at 225.
108. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV. L. REV. 1, 19-20 (1957).
109. Mishkin, supra note 1, at 192.
110. Id. at 195 ("Even in cases where no specific statutory provision is itself involved, the overall federal policy thus may nonetheless be better protected if all connected litigation is adjudicated by courts well versed in, and receptive to, the national policies established by the legislation.").
111. For generally favorable treatments, see Scott A. Rosenberg, Note, The Theory of Protective Jurisdiction, 57 N.Y.U. L. REV. 933 (1982);
112. Segall, supra note 45;
113. Loretta Shaw, Comment, A Comprehensive Theory of Protective Jurisdiction: The Missing "Ingredient" of "Arising Under" Jurisdiction, 61 FORDHAM L. REV. 1235 (1993);
114. George D. Brown, Beyond Pennhurst-Protective Jurisdiction, The Eleventh Amendment, and the Power of Congress to Enlarge Federal Jurisdiction in Response to the Burger Court, 71 VA. L. REV. 343 (1985). For generally unfavorable treatments,
115. see Carole E. Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L. REV. 542 (1983);
116. Note: Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102 HARV. L. REV. 1948 (1989);
117. John T. Cross, Congressional Power to Extend Federal Jurisdiction to Disputes Outside Article III: A Critical Analysis from the Perspective of Bankruptcy, 87 NW. U. L. REV. 1188 (1993);
118. James E. Pfander, The Tidewater Problem: Article III and Constitutional Change, 79 NOTRE DAME L. REV. 1925 (2004);
119. Young, Stalking the Yeti, supra note 71.
120. Textile Union Workers v. Lincoln Mills of Ala., 353 U.S. 448, 469-84 (Frankfurter, J., dissenting).
121. Id. at 460 (Burton, J., concurring in the result).
122. 230 F.2d 576, 580-82 (1st Cir. 1956).
123. Mesa v. California, 489 U.S. 121, 122 (1989).
124. Id. at 137-38.
125. 113F. Supp. 137 (D. Mass. 1953).
126. Id. at 140
127. (citing Ky. Whip & Collar Co. v. Ill. Cent. R.R. Co., 299 U.S. 334;
128. Williams v. Austrian, 331 U.S. 642, and Schumacher v. Beeler, 293 U.S. 367 (Bankruptcy Act);
129. Williams v. United States, 327 U.S. 711 (Assimilative Crimes Act);
130. Just v. Chambers, 312 U.S. 383, reh'g denied, 312 U.S. 668 (admiralty)).
131. Id.
132. (citing Mater v. Holley, 200 F.2d 123 (5th Cir. 1952)).
133. 353 U.S. at 473 (Frankfurter, J., dissenting).
134. Id. ("Whatever may be said of the assumption regarding the validity of federal jurisdiction under an affirmative declaration by Congress that state law should be applied as federal law by federal courts to contract disputes affecting commerce, we cannot argumentatively legislate for Congress when Congress has failed to legislate.").
135. S. 3092, 91st Cong. (1969),
136. reprinted in 115 CONG. REC. 32,141-42 (1969).
137. S. 1980, 91st Cong. (1969),
138. reprinted in 115 CONG. REC. 10,460-61 (1969).
139. 115 CONG. REC. 10,460 (statement of Sen. Tydings).
140. Id.
141. See Letter from Charles L. Black, Jr. Luce Professor of Jurisprudence, Yale Law School, to Hon. Bob Eckhardt (May 27, 1969),
142. reprinted in Hearings on Class Action and Other Consumer Protection Procedures Before the Subcomm. on Commerce and Finance of the House Comm. on Interstate and Foreign Commerce, 91st Cong. (2d Sess. 23 (1970))
143. [hereinafter Black Letter] ("Part of the thought behind this provision, doubtless, is that actions, brought under the laws which thus become a part of federal law, will indisputably 'arise under' the laws of the United States, and so satisfy beyond doubt the requirements of Article III.").
144. S. 3092, 91st Cong. § 4(c)(1), (2) (1969).
145. Hereinafter, I shall use the term "naked adoption" to describe a statute providing that the substantive law to be applied is to be the same as the law that would be applied in the absence of the statute in state courts or in federal courts having diversity jurisdiction. But cf. infra text accompanying notes 146-148 (noting that the combination of state substantive law and federal procedures may be said to produce a hybrid federal claim).
146. A quarter century later, Congress enacted the Class Action Fairness Act, Pub. L. 109-2, 119 Stat. 4 (2005)
147. [hereinafter CAFA]. Ironically, this law was enacted to provide a less hospitable forum for certain class action claims.
148. See Debra Lyn Bassett, The Defendant's Obligation to Ensure Adequate Representation in Class Actions, 74 UMKC L. REV. 511, 529, n.111 (2006). This time, Congress relied on the diversity clause of Article III rather than the "arising under" provision. CAFA at § 4. The diversity clause of Article III has been construed to authorize a grant of jurisdiction on the basis of "minimal diversity."
149. See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967). In CAFA, Congress conferred jurisdiction on the federal courts over "any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which any member of a class of plaintiffs is a citizen of a State different from any defendant, any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State, or any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state." § 4(a)(2). The availability of jurisdiction based on minimal diversity largely obviates the protective jurisdiction question for statutes such as CAFA, which are likely to involve at least one party from a different state than another.
150. But cf. James E. Pfander, Protective Jurisdiction, Aggregate Litigation, and the Limits of Article III, 95 Calif. L. Rev. 1423 (2007) (questioning the constitutionality of jurisdiction based on minimal diversity in part because it would permit evasion of Article III's "arising under" clause). In any event, as discussed above, Article III's "arising under" clause permits the conferral of jurisdiction for the purpose of providing a less hospitable forum for the adjudication of federally-created claims.
151. See United States v. Sharpnack, 355 U.S. 286, 291 (1958).
152. See generally William Cohen, Congressional Power to Validate State Laws: A Forgotten Solution to an Old Enigma, 35 STAN. L. REV. 387, 401-05 (1983).
153. Sharpnack, 355 U.S. 286.
154. See id. at 297-99 (Douglas, J., dissenting).
155. Id. at 294-96.
156. 200 F.2d 123 (5th Cir. 1952).
157. Id. at 124.
158. 309 U.S. 94 (1940).
159. Mater, 200 F.2d at 124.
160. Id.
161. Id.
162. In determining whether a case arises under a federal law for purposes if Article III, the Court has never asked whether the federal law differs in substance from the law that would apply ifthere had been no federal law. But cf. infra note 130 (discussing Goldberg-Ambrose's approach to Diplomatic Relations Act).
163. Even so, as noted, this has never been a requirement.
164. See Goldberg-Ambrose, supra note 89, at 558 ("Incorporation alone should not suffice . . . to fit the claim within a conventional interpretation of the arising under clause of article III because incorporation of state law does not generate any new independent federal rights.");
165. Young, Stalking the Yeti, supra note 71, at 1802-05.
166. See Note, Protective Jurisdiction and Adoption as Alternative Techniques for Conferring Jurisdiction on Federal Courts in Consumer Class Actions, 69 MICH. L. REV. 710, 731 (1971) ("The use of adoption and incorporation of state law solely as a means of providing federal-court jurisdiction should not be countenanced unless the result is one that can be reached within the bounds of a constitutionally valid theory of protective jurisdiction.").
167. Cf. Black Letter, supra note 104, at 23 ("firmly adher[ing]" to earlier conclusion that a simple grant of jurisdiction, without more, would be constitutional, but going on to conclude that adoption "furnishes a sound alternative theory on which constitutionality . . . may be based.").
168. Lincoln Mills, 353 U.S. at 474 (Frankfurter, J., dissenting).
169. Id. at 472-73.
170. Mishkin, supra note 1, at 190.
171. 489 U.S. 121, 137 (1989).
172. See Goldberg-Ambrose, supra note 89, at 547 ("[W]e must classify cases requiring protective jurisdiction by identifying the point at which there is insufficient federal law to establish that the claim involved arises under federal law, at least in the constitutional sense of that term.").
173. The irony that such an approach validates a jurisdictional grant only if Congress intrudes to a greater extent on substantive state law will be discussed below. My point for now is that, even if such distinctions were not perverse from a federalism perspective, it would be very difficult to draw a line between sufficient and insufficient displacement of state law.
174. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-28 (1979) ("Controversies directly affecting the operations of federal programs, although governed by federal law, do not inevitably require resort to uniform federal rules.");
175. De Sylva v. Ballentine, 351 U.S. 570 (1956).
176. See generally Paul Mishkin, The Variousness of "Federal Law ": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. PA. L. REV. 797 (1957).
177. In Kimbell Foods, supra, federal jurisdiction under Article III did not depend on the "arising under" clause because the United States was a party. Nevertheless, in the light of the Court's statement that the case was "governed byfederal law" even though the relevant federal law adopted state law, 440 U.S. at 727, it is clear that the case also arose under federal law for purposes of Article III.
178. Lincoln Mills, 353 U.S. at 457 ("[S]tate law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.)
179. See also Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943) ("In our choice of the applicable federal rule we have occasionally selected state law.").
180. Professor Young agrees. See infra text accompanying note 138 (discussing Young's approach to damage caps). Professor Goldberg-Ambrose has suggested that a § 301 suit between two labor unions might not properly arise under federal law in light of the Supreme Court's suggestion in United Association of Journeymen v. Local 334, 452 U.S. 615, 627 (1981), that the federal rule applicable in such cases "might consist entirely of incorporated state law."
181. See Goldberg-Ambrose, supra note 89, at 560. Her conclusion appears to be based on the notion that a case arises under federal law for purposes of Article III only when the applicable law differs in substance from the rule that would apply without a federal law. Thus, she suggests that a suit under the Diplomatic Relations Act, 28 U.S.C. § 1364, which authorizes direct actions against insurers of foreign diplomats in certain circumstances, would arise under federal law if the otherwise applicable state law did not authorize direct actions against insurers, but would not arise under federal law if the otherwise applicable state law did authorize direct actions.
182. See Goldberg-Ambrose, supra note 89, at 555.
183. As noted above, supra note 118, showing that the governing federal law differs in substance from the otherwise applicable law has never been a requirement of the "arising under" statute or the "arising under" clause of Article III. In indicating that the federal common law rule might adopt state law, the Court did not suggest in Lincoln Mills or Clearfield Trust or Journeyman that federal jurisdiction would be affected by that choice. (To be precise, Professor Goldberg-Ambrose states that Journeymen suits under § 301 and suits under the Diplomatic Relations Act in states with direct action statutes would not arise under federal law without reliance on a theory of protective jurisdiction. However, she is critical of theories of protective jurisdiction and would accept them only in limited circumstances.)
184. 28 U.S.C. § 1606.
185. This provision also supports the "federal claim" view defended in Part II. The argument would be that, before the emergence of the restrictive theory of foreign sovereign immunity, because of the absolute immunity of foreign sovereigns, state law did not extend to foreign sovereigns. Later, by virtue of § 1606 itself (or the principles of international law that § 1606 codified), foreign sovereigns became legally liable for injuries caused in certain circumstances. In this sense, claims against foreign sovereigns were created by § 1606, in conjunction with § 1605. For elaboration,
186. see Vázquez, Federal Jurisdiction Over Cases Between Aliens and Foreign States, supra note 52.
187. Admittedly, Frankfurter might require a more explicit statement that state law was being adopted as federal law. Short of such a statement, the provision might be read simply to make clear that the otherwise applicable law was not being altered except in the limited circumstances mentioned. If a clearer statement were required, however, it could easily be supplied.
188. Professor Young appears to accept the validity of a grant of jurisdiction for suits arising under a federal statute that adopts state law but imposes a damage cap. In discussing the Air Transportation and Safety and System Stabilization Act, he writes that "by limiting an air carrier's total liability to the limits of the carrier's insurance coverage, the Act restricts the operation of state law inan important class of cases. That restriction in itself may constitute a federal 'element' sufficient to support Article III jurisdiction under Osborn, at least for claims against air carriers."
189. Young, Stalking the Yeti, supra note 71, at 1789.
190. If he is suggesting that jurisdiction may be conferred only if federal law alters state law "in an important class of cases," he may not accept such jurisdiction if the cap is so high as to be implicated only in extraordinary cases.
191. Section 1606 may alter state law in another respect. Some lower courts have interpreted this section as instructing the courts to articulate and enforce a federal common law choice of law rule for FSIA cases. The courts that have read § 1606 this way have selected the "most significant relationship" test of the Second Restatement of Conflict of Laws as the federal choice of law rule. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145. Again, it should be clear that a case arises under federal law for purposes of Article III when the choice of law rule that would apply in the absence of § 1606 is a rule other than that of the Second Restatement. The Court has recognized that choice of law is a substantive issue for Erie purposes. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). By virtue of § 1606, federal law determines which substantive law will be applied to resolve the case on the merits. It does so by incorporating a state or foreign rule rather than by providing a rule of its own, but the choice of the governing rule is itself designed to achieve federal policy interests. The question, then, is whether the case would arise under federal law for purposes of Article III in all FSIA cases or just in the cases in which the otherwise applicable choice of law rule differed from the federal choice of law rule. A constitutional test that turned on such a comparison seems implausible.
192. Professor Young agrees: [E]very time a court deciding a case within the scope of federal common lawmaking authority elects to apply state law, it must decide whether the particular state rule in question creates a conflict with federal policy. . . . This federal element is at least as substantial as that presented by the federal status of the Bank in Osborn. Young, Stalking the Yeti, supra note 71, at 1786 (emphasis in original).
193. See Vázquez, Federal Jurisdiction Over Cases Between Aliens and Foreign States, supra note 52, at 1083 (arguing that § 1330 could be upheld under Mishkin's theory of protective jurisdiction even though the relevant federal policies to be protected would not have emanated from Congress).
194. Young, Stalking the Yeti, supra note 71, at 1789 (discussing damage caps).
195. H.R. REP. NO. 94-1487, at 6631-32 (1976);
196. DELLAPENNA, supra note 50, at 660-61.
197. FED. R. CIV. P. 4(k) advisory committee's note (amended 1993).
198. See supra text accompanying notes 100-107.
199. Susan Block-Lieb, The Case Against Supplemental Bankruptcy Jurisdiction: A Constitutional, Statutory, and Policy Analysis, 62 FORDHAM L. REV. 721, 792 (1994);
200. Cross, supra note 89, at 1238;
201. Thomas Galligan, Article III and the 'Related To' Bankruptcy Jurisdiction: A Case Study in Protective Jurisdiction, 11 U. PUGET SOUND L. REV. 1, 6 (1987).
202. Personal jurisdiction in state courts is governed by the Due Process clause of the Fourteenth Amendment, which requires minimum contacts with the state. Personal jurisdiction in federal courts, on the other hand, is governed by the Due Process clause of the Fifth Amendment, which permits the exercise of jurisdiction on the basis of minimum contacts with the nation. See, e.g., United Rope Distribs., Inc. v. Seatriumph Marine Corp., 930 F.2d 532 (7th Cir. 1991).
203. See generally Anthony J. Bellia, Federal Regulation of State Procedures, 110 YALE L.J. 947 (2001).
204. Even if the Constitution does not prohibit Congress from imposing procedures on state courts, Professor Bellia has persuasively shown that doing so would be severely intrusive. Bellia, supra
205. Even if the Constitution does not prohibit Congress from imposing procedures on state courts, Professor Bellia has persuasively shown that doing so would be severely intrusive. Bellia, supra note 144, at 989. From the states' perspective, conferring jurisdiction on the federal courts instead would appear to be the preferable option.
206. Bellia, supra note 144, at 994.
207. Id. at 995.
208. See also Goldberg-Ambrose, supra note 89, at 605 ("If a federal court utilizing more liberal federal class action procedures entertains claims arising under these state laws, the state's policy may be significantly distorted.").
209. Hearings on Class Action and Other Consumer Protection Procedures Before the Subcomm. on Commerce and Finance of the House Comm. on Interstate and Foreign Commerce, 91st Cong. 26 (1970).
210. See Wechsler, supra note 84, at 238-40.
211. Sheldon v. Sill, 49 U.S. 441 (1850).
212. Goldberg-Ambrose, supra note 89, at 590, n.261.
213. It is for this reason that the Supreme Court's reliance on the argument that "the greater power includes the lesser" in Posadas de Puerto Rico Associates v. Tourism Board of Puerto Rico, 478 U.S. 328, 345-46 (1986), was questionable.
214. See id. at 355 n.4 (Brennan, J., dissenting);
215. Michael Herz, Justice Byron White and the Argument That The Greater Includes the Lesser, 1994 BYU L. REV. 227, 270 & n.146 (1994) (discussing Posadas). It is for the same reason that, from the perspective of the Equal Protection Clause, the power not to establish lower federal courts does not include the power to limit their jurisdiction to suits brought by persons of a particular race or gender.
216. Young, Stalking the Yeti, supra note 71;
217. Goldberg-Ambrose, supra note 89, at 591 (displacement of state law may not be "realistically open to Congress").
218. Herz, supra note 152, at 241-42.
219. See also John H. Garvey, The Powers and the Duties of Government, 26 SAN DIEGO L. REV. 209, 216 (1989) ("The problem with [the argument that the 'greater' option is not in practice available] is that it confuses 'ought' with 'can.' . . . Think about the ultra vires doctrine . . . . The charter of X Corporation permits it to boycott Y Corporation, but X's board of directors would never agree to such a proposal. The board would agree to buy from Y only at a lower price. Is this proposal ultra vires? Probably not. If boycotts are OK, less drastic measures probably are too. It is a question of what the charter allows. The board's approval has no bearing on that question."). It is also noteworthy that the power to disestablish the lower federal courts is thought to include the power to limit their jurisdiction even though it would clearly be much easier to do the latter than the former. Professor Herz briefly considers Justice Frankfurter's objections to Wechsler's "greater-includes-the-lesser" argument. While noting that Frankfurter did not elaborate as to why he was rejecting the argument, Herz suggests that the explanation might have had to do with the strength of the federal government's justification for the grant of jurisdiction. Herz recognizes that, "in terms of the intrusion on state authority, to open the federal courts to state claims is "less" than supplanting state law altogether."
220. Herz, supra note 152, at 249. But he suggests that, "if the federal interest justifying [the opening of the federal courts to state claims] is proportionately even smaller [than the federal interest in supplanting state law altogether] then the first might be unconstitutional even though the second is not."
221. Id. I suppose this might be true if the constitutional test turned on the strength of the state interest in conferring jurisdiction. But the constitutional test for the validity of jurisdiction-conferring statutes does not turn on the strength of Congress's interest in conferring federal jurisdiction. Surely Frankfurter was not contemplating such a test when he spoke of the "truly technical requirements of Article III." Moreover, if the test did turn on the strength of the federal interests, it would be necessary first to consider the sorts of interests that would be legitimate. For the reasons I discussed above, a federal interest in providing a more (or less) hospitable forum is a legitimate federal interest under Article III. Whether this interest is strong enough to justify a grant of jurisdiction over any particular category of cases within Congress's Article I powers is a judgment that in my view belongs to Congress.
222. See Carol E. Goldberg-Ambrose, supra note 89, at 595-602;
223. Young, Sorting Out the Debate, supra note 61, at 426;
224. Note, Over-Protective Jurisdiction?, supra note 89, at 1956-63.
225. Young, Stalking the Yeti, supra note 71, at 1799.
226. Goldberg-Ambrose, supra note 89, at 604.
227. See Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (discussing Due Process limits on choice of law).
228. See, e.g., De Sylva v. Ballentine, 351 U.S. 570 (1956) (holding that state law determines who is a "child" for purposes of the Copyright Act).
229. See Young, Stalking the Yeti, supra note 71, at 1801 (emphasizing that diversity jurisdiction, unlike protective jurisdiction "does not remove entire categories of state claims from state court cognizance"; federal jurisdiction in diversity cases is "sporadic" and "not concentrated in particular area of state law");
230. Note, Over-Protective Jurisdiction?, supra note 89, at 1960;
231. Goldberg-Ambrose, supra note 89, at 607 ("What distinguishes protective jurisdiction from diversity, pendent or ancillary, or other-state jurisdiction . . . is its systematic displacement of state courts.").
232. Professor Young agrees. See Young, Stalking the Yeti, supra note 71, at 1786 (arguing that a statute authorizing federal common law-making in such a fashion could be the basis for "arising under" jurisdiction because "every time a court deciding a case [under such a statute] elects to apply state law, it must decide whether the particular state rule in question creates a conflict with federal policy").
233. Professor Young fears that protective jurisdiction would promote "substantive law 'creep'" even when Congress disavows any intent to preempt substantive state law, see Young, Stalking the Yeti, supra note 71, at 1799, but it is difficult to see why this should be an Article III problem if a congressional statute mandating application of state law unless such law conflicts with federal policy would pass muster, as he concedes.
234. see id. at 1785-1786.
235. Young, Stalking the Yeti, supra note 71, at 1799.
236. As Professor Young notes, this rationale played a role in cases such as Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).
237. For criticism of the "dignity" rationale, see Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1962 (2003);
238. Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1, 7 (2003).
239. Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
240. Young, Stalking the Yeti, supra note 71, at 1799 (quoting Lincoln Mills, 353 U.S. at 475 (Frankfurter, J., dissenting)).
241. See Carol E. Goldberg-Ambrose, supra note 89, at 600 (1983).
242. See New York v. United States, 505 U.S. 144 (1992).
243. See Printz v. United States, 521 U.S. 898 (1997).
244. New York, 505 U.S. at 168-69.
245. Printz, 521 U.S. at 930 (holding that federal commandeering offends accountability because state officials are "put in the position of
246. Goldberg-Ambrose, supra note 89, at 604.
247. See also id. at 600 (state autonomy "insures that citizens will 'know whom to hold accountable'"
248. (quoting Lewis Kaden, Politics, Money and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847, 857 (1979);
249. Goldberg-Ambrose, supra note 89, at 602 ("The public . . . seems unable to separate the bearer of bad tidings from the true source of the law.").
250. Goldberg-Ambrose, supra note 89, at 605.
251. See Printz, 521 U.S. at 907;
252. New York, 505 U.S. at 178.
253. Professor Bellia has argued that the Tenth Amendment does place some limits on Congress's power to commandeer state courts. Specifically, he argues that Congress must take state courts as it finds them and thus cannot require them to adjudicate state claims using federally-prescribed procedures. See Bellia, supra note 144, at 959. Even if he is right, it does not follow that Congress may not authorize federal courts to adjudicate state claims according to federal procedures. Much less does his argument suggest that Congress cannot authorize federal courts to adjudicate federal claims incorporating state law by reference.
254. Printz, 521 U.S. at 930.
255. Goldberg-Ambrose, supra note 89, at 602.
256. Id. at 605.