Stalking the Yeti: Protective jurisdiction, foreign affairs removal, and complete preemption

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1775-1820

  Young, Ernest A ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 38949181275     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (316)

1. Andrew C. Baak, Comment, The Illegitimacy of Protective Jurisdiction over Foreign Affairs, 70 U. CHI. L. REV. 1487, 1488 (2003).
2. Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157 (1953) [hereinafter Mishkin, Federal Question].
3. See id. at 184-96.
4. Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 LAW & CONTEMP. PROBS. 216, 224-25 (1948).
5. Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 473-76 (1957) (Frankfurter, J., dissenting).
6. See also HENRY HART & HERBERT WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM ix (1st ed. 1953) (dedicating the casebook "to Felix Frankfurter, who first opened our minds to these problems").
7. See Carole E. Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L. REV. 542, 542 (1983) (observing that protective jurisdiction "has been the subject of lively speculation in the face of negligible judicial authority").
8. Carlos M. Vázquez, 77ie Federal "Claim " in the District Courts: Osborn, Verlinden, and Protective Jurisdiction, 95 CALIF. L. REV. 1731 (2007).
9. 22 U.S. (9 Wheat.) 738 (1824).
10. See id. at 823 (holding that when a federal question "forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause").
11. See also Mishkin, Federal Question, supra note 2, at 160-61 (discussing Osborn).
12. See, e.g., Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908).
13. See 28 U.S.C. § 1442; Mesa v. California, 489 U.S. 121 (1989) (construing § 1442).
14. 29 U.S.C. § 185(a).
15. This is how Justice Frankfurter read the statute in the Lincoln Mills case. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 461 (1957) (Frankfurter, J., dissenting) (describing § 301 as "plainly procedural"). The majority disagreed, however. See infra note 23 and accompanying text.
16. As Justice Frankfurter put it, § 301 raised "the serious constitutional question . . . of a grant of jurisdiction to federal courts over contracts that came into being entirely by virtue of state substantive law, a jurisdiction not based on diversity of citizenship, yet one in which a federal court would, as in diversity cases, act in effect merely as another court of the State in which it sits." Id. at 469-70.
17. Wechsler, supra note 4, at 224.
18. Id. at 225.
19. Mishkin, Federal Question, supra note 2, at 190.
20. Id.
21. Id. at 192.
22. Id. at 195.
23. Id.
24. See id. at 196. Ray Forrester developed a similar version of protective jurisdiction in a 1948 article concerning the LMRA.
25. See Ray Forrester, The Jurisdiction of Federal Courts in Labor Disputes, 13 LAW & CONTEMP. PROBS. 114, 120 (1948) ("[W]here Congress has set up a broad legislative program and policy ... it may be argued that Congress is acting within the constitutional intent ... in granting jurisdiction to the federal courts over all litigation connected with and forming part of such a program.").
26. 353 U.S. at 456-57.
27. See Goldberg-Ambrose, supra note 6, at 547 ("[W]e must distinguish those cases that are encompassed by conventional readings of the arising under clause of article III from those that are not. Only in the latter need some concept of protective jurisdiction be invoked at all.").
28. 489 U.S. 121 (1989).
29. Id. at 139.
30. See, e.g., A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1461 (D.C Cir. 1995) (citing Mesa as "reject[ing] the notion of a 'protective jurisdiction' that goes beyond the reach of any substantive federal law").
31. The legislative history of the 1978 Bankruptcy Act, for example, strongly suggests that Congress intended the operative scope of federal bankruptcy jurisdiction to extend to the constitutional limit. See Ralph Brubaker, On the Nature of Federal Bankruptcy Jurisdiction: A General Statutory and Constitutional Theory, 41 WM. & MARY L. REV. 743, 751 (2000) ("Given the intended expanse of [the jurisdictional] provision, the limits of 'related to' bankruptcy jurisdiction are constitutional limits.").
32. See Daniel A. Färber, Legislative Constitutionalism in a System of Judicial Supremacy, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 431, 441-42 (Richard W. Bauman & Tsvi Kahana eds., 2006) ("[A]t least over the long haul, legislative views of the Constitution acquire independent constitutional weight.").
33. 28 U.S.C. § 1334(b). The statute also provides for "original and exclusive jurisdiction of all cases under" the Code. Id. at § 1334(a). This confusing juxtaposition of exclusive jurisdiction over bankruptcy "cases" and concurrent jurisdiction, with the state courts, of "civil proceedings" means that the federal court have "exclusive and nondelegable control over the administration of [a bankruptcy estate]," Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483 (1940), but that particular litigated controversies pertaining to the estate-i.e., "civil proceedings"-may be heard in the state courts.
34. Brubaker, supra note 28, at 839-40.
35. See also l COLLIER ON BANKRUPTCY ¶¶ 3.01[3]-[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev. 2006) (discussing federal court jurisdiction over Title 11 proceedings).
36. According to Professor Brubaker, "[t]his 'arising under' bankruptcy jurisdiction was designed to replicate general federal question jurisdiction where the source of federal law under which a claim is made is the federal Bankruptcy Code." Brubaker, supra note 28, at 801.
37. He gives the example of a trustee's effort "to recover a preferential transfer pursuant to the cause of action created by section 547 of the Bankruptcy Code." Id.
38. In contrast to the "arising under" bankruptcy jurisdiction, see supra note 31, Professor Brubaker describes this "arising in" jurisdiction "as a grant of general federal bankruptcy jurisdiction over all claims by and against the bankruptcy estate."
39. Brubaker, supra note 28, at 853. These will frequently be state law claims, as when the bankruptcy trustee seeks to recover an ordinary debt owed to the estate.
40. See, e.g., Celotex Corp. v. Edwards, 514 U.S. 300, 308 (1995) (observing that "the 'related to' language of [28 U.S.C. § 1334(b)] must be read to give [federal courts] jurisdiction over more than simply proceedings involving the property of the debtor or the estate"); 1 COLLIER ON BANKRUPTCY P3.01[1]c[iv], p. 3-28 (15th ed. 1994) (stating that "related to" claims encompass both causes of action owned by the debtor that become property of the estate and disputes between third parties that have an effect on the estate). Celotex, for example, involved an effort by one of the debtor's creditors to execute against a surety on a bond posted by the debtor.
41. See Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257 (1916). American Well Works was construing the statutory reach of § 1331, but its conclusion applies a fortiori to Article III itself. Justice Holmes believed that a federal right of action is a necessary condition for arising under jurisdiction, but the Court held (over his objection) that a federal element in a state cause of action will sometimes support federal question jurisdiction. See Smith v. Kan. City Title & Trust Co., 255 U.S. 180, 199-202 (1921);
42. see also Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005) (reaffirming Smith).
43. It seems clear, however, that a federal cause of action is a sufficient basis for "arising under" jurisdiction. See RICHARD H. FALLON, JR., DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 864 (5th ed. 2003) [hereinafter HART & WECHSLER];
44. but see Mary P. Twitchell, Characterizing Federal Claims: Preemption, Removal, and the Arising-Under Jurisdiction of the Federal Courts, 54 GEO. WASH. L. REV. 812, 819 n.36 (1986) (relying on Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), to establish that "the crucial factor for arising-under jurisdiction is the substantive law that applies to plaintiffs claim, not the law that provides the remedy").
45. See 11 U.S.C. § 323(b) (providing that the bankruptcy trustee "has capacity to sue and be sued"); Brubaker, supra note 28, at 815 (describing a "scholarly consensus" that "when a bankruptcy trustee sues on a debtor's state-law cause of action in federal court, because the bankruptcy trustee is a federal official ... the trustee's right to bring the action is an original federal ingredient");
46. Thomas Galligan, Article III and the "Related To" Bankruptcy Jurisdiction: A Case Study in Protective Jurisdiction, 11 U. PUGET SOUND L. REV. 1, 33-34 (1987) ("[F]ederal law is an original ingredient in any suit brought by a trustee in bankruptcy.").
47. See Osborn, 22 U.S. (9 Wheat.) at 823-25 (holding that the capacity of the Bank of the United States to sue and be sued was a necessary federal element of any suit involving the Bank, so that the statute providing for federal jurisdiction over such suits fell within the scope of Article III). Professor Mishkin likewise agreed that in suits by the bankruptcy trustee, "the 'original ingredient' of national law may be found in the assignment to the plaintiff-trustee, by operation of federal law, of the claim on which he is suing."
48. Mishkin, Federal Question, supra note 2, at 194-95. He considered these suits instances of protective jurisdiction nonetheless, because he thought Congress's purpose in providing for federal jurisdiction over them was protection of the overall program of bankruptcy regulation, not guarding against state court bias against the trustee itself.
49. See id. at 195. I suspect, however, that one could make a similar legislative motive claim about any number of statutes using a relatively minor federal element as a hook to provide a federal forum. These sorts of motive inquiries tend to be highly indeterminate a particularly serious problem when they are injected into jurisdictional inquiries that courts seek to resolve expeditiously at the outset of litigation. Moreover, I argue in Part II that even a fairly formal requirement that Congress include some substantive element when it extends federal question jurisdiction may act as a practical constraint on the scope of such jurisdiction.
50. See infra notes 105-113 and accompanying text. If correct, that argument provides some support for a more formal approach to jurisdictional hooks than Professor Mishkin's view would appear to contemplate.
51. See, e.g., Galligan, supra note 35, at 35 ("If all Congress has to do to grant federal jurisdiction, without providing a rule of decision, is to 'create' a federal juridical entity, then whenever it wanted a federal court to hear a case Congress could so legislate by engaging in semantics.");
52. 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, 1230 n.158 (1993) ("[A] case involving a debtor in possession cannot be readily fit into the 'federal party' theory").
53. Professor Brubaker points out that [F]ederal law, inter alia, (1) enjoins enforcement of claimants' prebankruptcy rights, channeling them into the bankruptcy four for resolution and eventual treatment under a reorganization plan; (2) closely regulates all aspects of the ongoing financing and operation of the business; (3) introduces an interim regime of internal governance and fiduciary obligation, including a distinct body of law regarding control of 'derivative' litigation; and (4) arms the estate with an arsenal of unique federal causes of action in the form of the socalled avoiding powers-all under the watchful supervision of official constituent committees, the Justice Department, and a federal bankruptcy court.
54. Brubaker, supra note 28, at 827-28 (footnotes and statutory citations omitted). He thus concludes that "[a] reorganization estate, . . . even with a debtor-in-possession at the helm, truly exists as a unique federal entity and not a mere jurisdiction-conferring sham." Id. at 829.
55. Galligan, supra note 35, at 5.
56. See Brubaker, supra note 28, at 806.
57. See Galligan, supra note 35, at 36-41;
58. Goldberg-Ambrose, supra note 6, at 552.
59. See Brubaker, supra note 28, at 831-43.
60. See id. at 869-70.
61. See supra notes 23-24 and accompanying text.
62. 452 U.S. 615(1981).
63. 29 U.S.C. § 185(a).
64. 452 U.S. at 627 (citing Lincoln Mills, 353 U.S. at 456,
65. and Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 (1966)). Hoosier Cardinal dealt with the applicable limitations period for a § 301 suit. The Court held that "since no federal provision governs ... the timeliness of a § 301 suit... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." 383 U.S. at 704-05.
66. See, e.g., 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. . . . Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law") (internal citations and quotation marks omitted); 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.");
67. HART & WECHSLER, supra note 34, at 701 (observing that "the Court's current approach to federal common lawmaking" demonstrates "a preference for incorporation of state law absented a demonstrated need for a federal rule of decision").
68. Goldberg-Ambrose, supra note 6, at 558.
69. Compare, e.g., Kimbell Foods, 440 U.S. at 740 (deciding "to adopt the readymade body of state law as the federal rule of decision"), with O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) ("[K]nowing whether 'federal law governs' in the Kimbell Foods sense-a sense which includes federal adoption of state-law rules . ..-does not much advance the ball. The issue in the present case is whether the California rule of decision is to be applied to the issue of imputation or displaced, and if it is applied it is of only theoretical interest whether the basis for that application is California's own sovereign power or federal adoption of California's disposition."), and Boyle v. United Technologies, Corp., 487 U.S. 500, 507 n.3 (1988) ("We refer here to the displacement of state law, although it is possible to analyze it as the displacement of federal-law reference to state law for the rule of decision. Some of our cases appear to regard the area in which a uniquely federal interest exists as being entirely governed by federal law, with federal law deigning to 'borro[w],' ... or 'incorporat[e]' or 'adopt'. . . state law except where a significant conflict with federal policy exists. We see nothing to be gained by expanding the theoretical scope of the federal pre-emption beyond its practical effect, and so adopt the more modest terminology.") (citations omitted).
70. See Goldberg-Ambrose, supra note 6, at 558, 561-62.
71. Federal common law binds both federal and state courts, and indeed some § 301 actions are brought initially in state court. See, e.g., Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). Generally speaking, the Supreme Court cannot review issues of state law on appeal from the state courts. See Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875). But the application of a state law rule incorporated into federal law would presumably present a reviewable federal question.
72. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (holding that federal courts must follow the interpretation of state law articulated by the state's highest court).
73. United States v. Little Lake Misere Land Co., 412 U.S. 580, 596 (1973) (quoting Reconstruction Finance Corp. v. Beaver City, 328 U.S. 204, 210 (1946)).
74. Section 302 of the LMRA takes this form: It generally prohibits payments by employers to employee representatives, but exempts trust funds that meet certain federal requirements. It then permits federal courts to hear claims that the state-law fiduciary obligations arising from such trusts have been violated. See 29 U.S.C. § 186(c)(5), (e); Goldberg-Ambrose, supra note 6, at 563-64 (describing the operation of this provision and characterizing it as an instance of protective jurisdiction). My analysis in the text suggests that, since the enforceability of these state-law obligations depends in federal court depends on the trust's compliance with federal requirements, that federal question of compliance is sufficient to support arising under jurisdiction without recourse to any protective theory.
75. See Sierra Club v. Ga. Power Co., 443 F.3d 1346, 1348-50 (11th Cir. 2006) (describing the statutory roles of the EPA, state agencies, and citizen enforcement under the Clean Air Act); see generally John P. Dwyer, The Role of State Law in an Era of Federal Preemption: Lessons from Environmental Regulation, 60 L. & CONTEMP. PROBS. 203 (1997) (describing the states' role in implementing federal environmental laws).
76. See 42 U.S.C. § 7604(a) (providing that "[t]he district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order [issued by the Administrator or a State with respect to such a standard or limitation]").
77. See, e.g., Georgia Power, 443 F.3d at 1347.
78. See Goldberg-Ambrose, supra note 6, at 564;
79. HART & WECHSLER, supra note 34, at 854 (citing the Clean Air Act as a possible example of a protective jurisdiction statute).
80. See 42 U.S.C. § 7604(a) (providing that "any person may commence a civil action on his own behalf-(1) against any person . . . who is alleged to have violated ... or to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation").
81. See supra note 34 and accompanying text.
82. Goldberg-Ambrose, supra note 6, at 614 n. 370.
83. See, e.g., Sierra Club v. Tenn. Valley Auth., 430 F. 3d 1337, 1349 (11th Cir. 2005) (holding that an Alabama modification to its SIP failed to meet the requirements of the federal Act).
84. See supra notes 54-55 and accompanying text.
85. See Air Traffic Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (2001). For overviews, see generally Linda S. Mullenix & Kristen B. Stewart, The September 11th Victim Compensation Fund: Fund Approaches to Resolving Mass Tort Litigation, 9 CONN. INS. L. J. 121 (2002/2003);
86. Erin G. Holt, Note, The September II Victim Compensation Fund: Legislative Justice Sui Generis, 59 N.Y.U. ANN. SURV. AM. L. 513 (2004).
87. ATSSSA, § 408(b)(1), (2).
88. See Holt, supra note 64, at 544-45;
89. HART & WECHSLER, supra note 34, at 854-55.
90. See ATSSSA, § 408(b)(1) ("There shall exist a Federal cause of action for damages arising out of the hijacking and subsequent crashes of American Airlines flights 11 and 77, and United Airlines flights 93 and 175, on September 11, 2001.").
91. See supra note 34 and accompanying text.
92. Holt, supra note 64, at 544;
93. see also Goldberg-Ambrose, supra note 6, at 550 ("Claims in which the only federal law is an incorporation of existing state law [should] be treated the same as claims based on state law alone because the incorporation, by definition, would not alter any elements of the claim.").
94. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 730-31 (1979) (Powell, J., dissenting): As the Legislative Branch, Congress . . . should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, . . . Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.
95. The ATSSSA's language, moreover, suggests that it adopts state tort rules rather than allows them to apply of their own force. That implies that, while the underlying principles would be drawn from state law, their application in ATSSSA cases would represent a federal question for a variety of purposes, such as whether federal courts would be bound by state court decisions or whether federal court rulings would be reviewable by the U.S. Supreme Court. Cf. Goldberg-Ambrose, supra note 6, at 550 n.46 (acknowledging that "a 'true' federal question will exist" where Congress adopts state law without committing the federal courts to follow subsequent interpretations or changes to that law).
96. See ATSSSA § 408(a).
97. Mishkin, Federal Question, supra note 2, at 192.
98. See generally Pub. L. No. 95-393.
99. See 28 U.S.C. § 1364(a); S. Rep. No. 1108, 95th Cong., 2d Sess. 5 (1978).
100. 28 U.S.C. § 1364(b).
101. This argument would be harder to make for 28 U.S.C. § 1351, which provides exclusive federal jurisdiction for all civil actions against members of diplomatic missions or their families. Any such suit involving a U.S. plaintiff, of course, would fall under the citizen-alien diversity provision of Article III.
102. 28 U.S.C. § 1350.
103. HT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).
104. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (upholding jurisdiction under the ATS over a suit by Paraguayan citizens against a former Paraguayan official for acts of torture committed in Paraguay);
105. Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 VA. J. INT'L L. 365 (2002) (surveying the theoretical and doctrinal debate).
106. See, e.g., 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). The conventional wisdom has long been that customary international law should be treated as supreme federal law in domestic courts.
107. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 111, editors' note 3 (1987). For a defense of that position,
108. see, e.g., Harold Hongju Koh, Is International Law Really State Law? 111 HARV. L. REV. 1824 (1998).
109. The problem would not arise for ATS suits in which an alien sued a U.S. citizen, or in which the rule of decision was provided by a federal treaty. But alien vs. alien suits under customary norms appear to have been an important category of claim in the founding period and remain an important category today. For a modern example of an alien vs. alien suit, see Kadic v. Karadzic, 70 F.3d 232, 246 (2d. Cir 1995) (retaining jurisdiction, under Alien Tort Statute, of suit by Bosnians against Bosnian-Serb leader for the commission of atrocities). For an important alien versus alien incident in the pre-constitutional period,
110. see Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784).
111. See William Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467 (1986).
112. See U.S. CONST, art. I, § 8 (conferring legislative power "To define and punish . . . Offenses against the Law of Nations").
113. Some of the most important torts covered by customary international law have, in fact, been federalized by statute. See, e.g., Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350); 18 U.S.C. § 1651 (criminalizing, under federal law, "the crime of piracy as defined by the law of nations"). In these instances, however, federal law adopts the substantive international norms into domestic law and provides a cause of action, so there is no doubt that cases involving these norms "arise under" federal law for purposes of Article III.
114. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (upholding federal jurisdiction over a suit by an alien against another alien for a tort in violation of customary international law).
115. 542 U.S. 692 (2004).
116. See Ernest A. Young, Sosa and the Retail Incorporation of International Law, 120 HARV. L. REV. F. 28 (2007);
117. supra note 34 and accompanying text (discussing the Holmes rule).
118. For further discussion of the nature of the federal question in Sosa, see William A. Fletcher, International Human Rights in American Courts, 93 VA. L. REV. IN BRIEF 1, 7-8 (2007), http://www.virginialawreview.org/inbrief/2007/03/22/fletcher.pdf.
119. Anthony J. Bellia, Jr., Sosa, Federal Question Jurisdiction, and Historical Fidelity, 93 VA. L. REV. IN BRIEF 15, 17 (2007), http://www.virginialawreview.org/inbrief/2007/03/ 22/bellia.pdf. Judge Fletcher argues that Sosa went so far as to federalize the customary international law rules of decision that fall within the narrow set of approved claims,
120. see Fletcher, supra, at 12.
121. My own view is that Sosa is best read more narrowly as recognizing a federal right of action to enforce customary international law rules of decision, without taking the additional step of federalizing those rules of decision.
122. See Young, Retail Incorporation, supra note 88, at 31-33. The important point for present purposes, however, is that in neither event would we have to rely on a protective theory to support the ATS.
123. 542 U.S. at 725.
124. See, e.g., Curtis A. Bradley, The Alien Tort Statute and Article III, 42 VA. J. INT'L L. 587, 591 (2002) (arguing that the First Congress intended the ATS to "authorize[] federal court jurisdiction over certain sensitive disputes between aliens and U.S. citizens, without regard to the $500 amount in controversy limitation generally imposed by the First Congress on alienage jurisdiction.").
125. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d. 774, 817 (D.C. Cir. 1984) (Bork, J., concurring) ("International law typically does not authorize individuals to vindicate rights by bringing actions in either international or municipal tribunals.");
126. Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 461 (1989) (describing as "vexed" the question whether international law itself creates a cause of action to enforce international rights). On the possibility that state law might choose to provide rights of action to enforce international norms,
127. see Fletcher, supra note 89, at 8-10.1 am unaware, however, that any state has so far chosen to create such a right.
128. See Tel-Oren, 726 F.2d at 724 ("we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy").
129. Bradley, supra note 91, at 588.
130. 353 U.S. at 474 (Frankfurter, J., dissenting).
131. This is true of the lower federal courts because of the "Madisonian Compromise" at the Constitutional Convention, which punted to Congress the decisions whether to create lower federal courts at all and, if it did choose to create them, what jurisdiction to confer upon them. See generally HART & WECHSLER, supra note 34, at 330-61. It is also effectively true of the Supreme Court's appellate jurisdiction, because the Court has chosen to read statutes conferring some degree of appellate jurisdiction upon it as implicit exercises of Congress's power to make "exceptions" to the Court's jurisdiction,
132. see U.S. CONST, art. III, § 2; all jurisdiction not explicitly conferred, in other words, is deemed "excepted."
133. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 513 (1869) (acknowledging "the principle that the affirmation of appellate jurisdiction [in statute] implies the negation of all such jurisdiction not affirmed").
134. Although the Supreme Court has never struck down a statutory grant of jurisdiction on the ground that it exceeded the scope of the "arising under" clause in Article III, it has struck down such statutes for seeking to extend the Supreme Court's original jurisdiction beyond constitutional bounds, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and for attempting to confer jurisdiction over suits falling outside Article III's "case or controversy" requirement,
135. see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
136. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV. L. REV. 1, 20 (1957).
137. Id. at 20-21. Accord Vázquez, supra note 7, at 34 ("Conferring federal jurisdiction by displacing state law is more intrusive from a federalism perspective than conferring federal jurisdiction without displacing state law").
138. See Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 130-34 (2004).
139. Bickel & Wellington, supra note 98, at 20.
140. There are also, of course, the more traditional arguments about superior state court expertise on state law questions and limitations on federal judicial resources.
141. 353 U.S. at 474 (Frankfurter, J., dissenting). "Greater/lesser power" arguments have been rejected in any number of areas. See, e.g., Republican Party v. White, 536 U.S. 765, 788 (2002) ("The greater power to dispense with [judicial] elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance.") (internal quotation marks omitted);
142. Lakewood v. Plain Dealer Pub. Corp., (describing the argument that "the greater power to prohibit a manner of speech entirely includes the lesser power to license it in an official's unbridled discretion" as a "discredited doctrine"). The unconstitutional conditions doctrine, for example, holds that the Government's "greater power" to deny a government benefit altogether does not include the "lesser power" to condition that benefit on the surrender or waiver of a constitutional right.
143. See, e.g., Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 30-31 (1988) (demonstrating, by way of the economic effects on two businesses seeking corporate charters, that the "lesser power" of selectively granting charters has greater effects than the "greater power" of denying all charters);
144. Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1313-14 (1984) (noting that because the government's "greater power" to absolutely deny a benefit may be practically unusable, it does not follow that the government has the "lesser power" of selective denial).
145. Compare, e.g., United States v. Lopez, 514 U.S. 549 (1995) (holding that the federal Gun Free School Zones Act fell outside the reach of Congress's commerce powers), with Gonzales v. Raich, 545 U.S. 1 (2005) (reading Lopez narrowly in upholding Congress's authority to regulate the possession of home-grown marijuana). See generally Bickel & Wellington, supra note 98, at 21 (acknowledging that protective jurisdiction could potentially encompass "a considerable slice of state law" because of "the general expansion of the area of federal interest and competence").
146. See generally Herbert L. Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954) (stressing the political representation of the states in Congress);
147. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001) (stressing the procedural difficulties of the legislative process as a check on federal legislative action). Professor Vázquez argues that "the reason that a statute substantively displacing state law would be more difficult to get enacted is precisely because it is more intrusive of state interests," and suggests that "the comparative ease of enacting such a law" is hardly a reason to prefer the more intrusive option.
148. Vázquez, supra note 7, at 1767. This would be correct if intrusion on state interest were the only reason making substantive federal legislation more difficult to enact. As I discuss in the text, however, the primary hurdle to such legislation is likely not federal solicitude for state interests, but rather the difficulty of reaching agreement among federal politicians concerning the substantive policy to be enacted. Vázquez's argument becomes even less compelling if the enactment of "bare" jurisdictional statutes actually leads to the creation of preemptive federal common law. See infra notes 114-115 and accompanying text.
149. See Goldberg-Ambrose, supra note 6, at 578 ("To avoid having to articulate a policy that may offend some segment of the public, Congress may prefer to rely on state law, using federal jurisdiction as a covert means of achieving its ends.").
150. See, e.g., Amanda Ripley, What is a Life Worth? To Compensate Families of Sept. 11, the Government Has Invented a Way to Measure Blood and Loss in Cash: A Look at the Wrenching Calculus, TIME, Jan. 28, 2002, at 22.
151. This is no doubt why, in administering the federally-created fund for compensating victims who opt to forego litigation, Congress largely delegated responsibility for determining entitlements to compensation to a "special master" appointed by the Attorney General. See ATSSSA §§ 404(a)(2) (delegating authority to the Attorney General to "promulgate all procedural and substantive rules for the administration of this title"), 405(b)( I)(B)(U) (delegating to the Special Master authority to determine "the amount of compensation to which the claimant is entitled based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant").
152. My argument here is similar to a standard critique of broad delegations of legislative authority to administrative agencies. That critique holds that the ability to delegate difficult policy choices to agencies makes it easier for Congress to legislate without being held politically accountable for potentially unpopular aspects of the resulting legislative program. See, e.g., DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY 99-105 (1993).
153. See, e.g., Goldberg-Ambrose, supra note 6, at 582 ("[T]he situation may often be such that Congress would not act at al.l if its only option were to create federal substantive standards."). It is odd to object, as Professor Vázquez does, that this is "more a political than a legal argument." Vázquez, supra note 7, at 1766 (quoting Michael Herz, Justice Byron White and the Argument that the Greater Includes the Lesser, 1994 BYU L. REV. 227, 241-42 (1994)). After all, our legal structures of federalism and separation of powers are designed primarily to calibrate political checks on power.
154. Justice Frankfurter scoffed at this distinction, observing that Professor Mishkin's theory "has the dubious advantage of limiting incursions on state judicial power to situations in which the State's feelings may have been tempered by early substantive federal invasions." 353 U.S. at 476 (Frankfurter, J., dissenting).
155. See Martha Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 883, 938 (1986) ("It is also probably true that more federal law will result if Congress can delegate to the judiciary than if it could not; it is easier for Congress to enact a law federalizing an area and telling the courts to devise the law than it is for Congress to create the law itself").
156. See also James J. Brudney, Congressional Commentary on Judicial Interpretation of Statutes: Idle Chatter or Telling Response? 93 MICH. L. REV. 1, 29-32 (1994) (describing how requiring Congress to legislate in detail can increase burdens of legislative inertia).
157. See Lincoln Mills, 353 U.S. at 456.
158. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (finding conflict preemption notwithstanding the presence of an explicit savings clause protecting state law).
159. 87 U.S. (20 Wall.) 590, 626 (1875). See generally Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 COLUM. L. REV. 1211, 1237-38 (collecting authorities in support of this principle).
160. Williams v. Austrian, 331 U.S. 642, 680 (1947) (Frankfurter, J., dissenting).
161. Lincoln Mills, 353 U.S. 475 (Frankfurter, J., dissenting);
162. see also Note, Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102 HARV. L. REV. 1948, 1961 (1989) (arguing that protective jurisdiction "discredits state courts").
163. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002);
164. see also Robert F. Nagel, Judicial Power and the Restoration of Federalism, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 52, 58 (2001) (arguing that the Court's federalism rulings "insist that states retain a certain degree of dignity and status, and this is an important precondition to the sort of competition between levels of government that the Framers envisioned").
165. See, e.g., Ann Althouse, On Dignity and Deference: The Supreme Court's New Federalism, 68 U. CINN. L. REV. 245 (2000) (criticizing the Court's invocations of state dignity as an unhelpful abstraction);
166. Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1 (2003) (acknowledging the importance of sovereign dignity in foreign relations law, but arguing that the concept has no application when Congress seeks to subject states to suit under federal law). The dignitary argument advanced here is arguably consistent with Professor Smith's criticism of the Court's state sovereign immunity cases, which involve the states' responsibilities under supreme federal law. With respect to the state law claims at issue in protective jurisdiction situations, the states are the relevant sovereign.
167. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 150-57 (1996) (Souter, J., dissenting) (arguing that the States are sovereign as against state claims, but not federal ones).
168. Judith Resnik & Julie Chi-Hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1943-46 (2003);
169. see also Young, Two Federalisms, supra note 100, at 157-58 (discussing the importance of dignity for states).
170. Cf. Note, Over-Protective Jurisdiction, supra note 118, at 1961-62 (worrying that federal laws divesting the state courts of jurisdiction over their own law "forecloses a view of state courts as the impartial articulators of the political community's shared ideals, reducing them to mere administrative bodies serving at the pleasure of Congress"). Professor Vázquez's invocation of Justice Story's opinion in Martin v. Hunter's Lessee in response to this dignitary concern,
171. see Vázquez, supra note 7, at 1770 (quoting Martin v. Hunter's Lessee, 14 U.S. 304, 346-47), is odd, as Story was talking about affronts to state court dignity, such as the diversity jurisdiction, that were built into the constitutional text. Protective jurisdiction has no such textual warrant, of course. The empirical assumptions about the quality of justice in state courts that may have informed textual provisions like the Diversity Clause do not bind us today, and Justice Story's views on the question are nearly 200 years out of date.
172. See infra note 211 and accompanying text (noting the extreme difficulty of determining empirically whether state courts are actually hostile to federal claims and federal policy).
173. See generally Goldberg-Ambrose, supra note 6, at 604-08.
174. See 87 U.S. (20 Wall.) at 636.
175. See id. at 633. See also Field, supra note 113, at 920
176. ("Murdock is like Erie in that it is unclear whether its . . . rule is properly seen as one of constitutional dimension."). The fundamental role played by the Murdock rule illustrates the vital constitutive role played by jurisdictional statutes in constructing the architecture of the dual judicial system. See generally Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L. J. (forthcoming Fall 2007) (arguing that the vast majority of constitutive work in our legal system is done by extraconstitutional rules).
177. Field, supra note 113, at 922.
178. Id. at 921.
179. See Goldberg-Ambrose, supra note 6, at 575 (suggesting that Congress may create protective jurisdiction because it hopes that federal courts will interpret state law in a way that reflects federal policy preferences).
180. Vázquez, supra note 7, at 1768.
181. Id. at 1767-68.
182. See supra note 127 and accompanying text.
183. Professor Vázquez misconstrues the political accountability argument for state court control over state law as one about the "blurring" of political responsibility. See Vázquez, supra note 7, at 1756. My argument is more fundamental, however. It is predicated on the need for state law to be interpreted by judicial institutions that are constituted, staffed, and controlled through the state's own political processes.
184. See Goldberg-Ambrose, supra note 6 at 609-11 (suggesting that protective jurisdiction is most subversive of state courts' control over state law when it "dominates the litigation in a well-defined area of state law).
185. See supra notes 56-62 and accompanying text.
186. See, e.g., Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953) (insisting that Congress's power to make "exceptions" to the Supreme Court's appellate jurisdiction does not empower Congress to "destroy the essential role of the Supreme Court in the constitutional plan");
187. Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 201-02 (1960) (arguing that Congress may not use the Exceptions Clause to negate the Court's "essential constitutional functions of maintaining the uniformity and supremacy of federal law");
188. but see Herbert L. Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (suggesting that the power of judicial review springs from jurisdiction to hear a case, not the other way round).
189. See Textile Workers v. Am. Thread, 113 F. Supp. 137, 140 (D. Mass. 1953).
190. Vázquez, supra note 7, at 1754.
191. See id. at 1762.
192. Id. at 1767-68.
193. See, e.g., J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (requiring Congress to articulate an "intelligible principle" to guide the exercise of executive discretion).
194. See, e.g., Whitman v. Am. Trucking, 531 U.S. 457 (2001) (rejecting a nondelegation challenge to provisions of the Clean Air Act).
195. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 143 (1990) ("Broad delegations of power to regulatory agencies, questionable in light of the grant of legislative power to Congress in Article I of the Constitution, have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued.").
196. See Lawrence Sager, Fair Measure: The Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 122(1978).
197. See generally Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1 (1985);
198. see also United States v. Kimbell Foods, Inc. 440 U.S. 715, 728-29 (1979);
199. Field, supra note 113, at 886.
200. Cf. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (requiring that Congress speak clearly if it wishes to intrude on state functions).
201. Compare Atherton v. FDIC, 519 U.S. 213, 218 (1997) (noting that "a significant conflict between some federal policy or interest and the use of state law ... is normally a precondition" for fashioning a rule of federal common law).
202. See, e.g., Field v. Mans, 516 U.S. 59 (1995) (defining the meaning of a creditor's reliance under the Bankruptcy Code by selecting a definition of "reliance" from state law, based on a survey of all the different interpretations of such reliance in the different state jurisdictions).
203. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001); HART & WECHSLER, supra note 34, at 781 (observing that since 1979, "the Court . . . has generally rejected claims of implied federal remedies").
204. Vázquez, supra note 7, at 1757-1760.
205. Goldberg-Ambrose, supra note 6, at 609.
206. See Galligan, supra note 32, at 58-71.
207. See, e.g., Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of ProcessBased Federalism Theories, 79 TEX. L. REV. 1459 (2001) (criticizing process federalism approaches);
208. Timothy Zick, Are the States Sovereign? 83 WASH. U. L. Q. 225 (2005) (criticizing generalized invocations of sovereignty in debates about federalism). By criticizing generalized invocations of these concepts, I do not mean to suggest that they are irrelevant to judicial federalism; after all, I have invoked both process federalism and sovereign dignity in criticizing protective jurisdiction. The point is that previous invocations of these concepts in debates about protective jurisdiction have tended to be far too blunt to respect the relevant interests, and too open-ended to constrain judicial discretion.
209. BellSouth Telecomms. v. MCImetro Access Transmission Servs., 317 F.3d 1270, 1290 (11th Cir. 2003) (Tjoflat, J., dissenting);
210. see also Goldberg-Ambrose, supra note 6, at 566 ("Protective Jurisdiction usually results from deliberate congressional decision, as the courts have been reluctant to recognize protective jurisdiction in the absence of a clear expression of congressional intent.").
211. 113 F.3d 540 (5th Cir. 1997).
212. See id. at 541-42.
213. M. at 543.
214. Id. at 542 n.7 (citing Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981)). Texas Industries was not itself a foreign affairs case, but it contains an oft-cited laundry list of the categories of federal common-lawmaking. See Tex. Indus., 451 U.S. at 641.
215. 376 U.S. 398 (1964).
216. I have argued elsewhere that Sabbatino does not, in fact, support any broad mandate to formulate federal common law rules of decision in any case implicating foreign affairs. See Young, Customary International Law, supra note 80, at 443-44.
217. See 113 F.3d at 543-44. Jurisdiction in Torres could have been sustained on grounds of diversity alone; the district court had relied on foreign affairs removal only because it determined that Southern Peru Copper was a citizen of both Delaware (its state of incorporation) and Peru (its principal place of business). The court of appeals reversed on this point, rejecting the argument that "a corporation incorporated in the United States with its principal place of business located abroad" should be treated as a foreign citizen, thereby destroying diversity. The court concluded that the state of incorporation controlled. See id.
218. See 28 U.S.C. § 1441(b) (permitting removal on diversity grounds "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought"); Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1371 (11th Cir. 1998) (noting that, "because the individual defendants in this case are Georgia citizens, removal would not ordinarily be permitted on diversity grounds").
219. 806 F.2d 344 (2d Cir. 1986).
220. The question was "whether to honor the request of a foreign government that the American courts enforce the foreign government's directives to freeze property in the United States subject to future process in the foreign state." Id. at 354. That question, the court of appeals concluded, "it itself a federal question to be decided with uniformity as a matter of federal law." Id. This question seems sufficiently close to the concerns of the federal act of state doctrine recognized in Sabbatino to fit within even a narrow reading of the federal common lawmaking authority recognized in that case. It is not necessarily the case, however, that such a federal element would support statutory "arising under" jurisdiction under § 1331.
221. The plaintiffs' cause of action in Marcos was, as the court acknowledged, predicated on "a theory . . . akin to a state cause of action for conversion"; the federal common law question concerning the force of the foreign government's directive appeared as an "element" in that cause of action. Id. at 354. The Supreme Court seemed to hold in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817 (1986),
222. that a federal element in a state law cause of action would "arise under" federal law for purposes of § 1331 only if a federal private right of action were available to enforce the federal element in question. The federal common law element in Marcos seems unlikely to fit that description. More recently, the Court retreated from Merrell Dow in Grable & Sons Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005), suggesting that federal elements without a federal privateright to enforcement may support jurisdiction under § 1331 if there are strong interests in providing a federal forum and the federal element in question implicates a class of cases that is small enough not to alter the balance between state and federal courts. Cases like Marcos may or may not fit this new standard.
223. 389 U.S. 429 (1968).
224. See id. at 440-41.
225. Resting federal question jurisdiction on a potential Zschernig argument is subject to two powerful criticisms. The first would attack the broad reading of Osborn as recognizing "arising under" jurisdiction whenever the suit includes a potential federal element. Although there is language in Chief Justice Marshall's opinion to support this reading, it would remove virtually all limits to Article III. Any case, for instance, encompasses the possibility that a party might raise a federal Due Process challenge to the court's procedures. While I think this is a powerful criticism in general, in the context of foreign affairs removal it would function largely as a rule of pleading. Although the cases thus far have not generally invoked Zschernig explicitly, it would be easy to do so: Any defendant who can plausibly raise the foreign affairs removal doctrine will be able to make an argument for dormant preemption under Zschernig. Once that is done, the case will fit squarely under a more limited reading of Osborn.
226. A second criticism stems from the dubious validity of the Zschernig doctrine itself. Many scholars have recognized that, in a globalizing world, an incredibly wide range of state actions-from regulating pollution within state borders to executing state citizens for murder-may complicate the nation's foreign relations. See, e.g., Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617 (1997);
227. Young, Customary International Law, supra note 80, at 415-23. The majority opinion in Zschernig offered no principled basis for distinguishing among these various forms of potential "interference." The doctrine is, in other words, so broad as to be unusable in practice. Hence, as Carlos Vázquez has noted, "Zschernig has so far been the only case in which the U.S. Supreme Court has struck down a state law on dormant foreign affairs power grounds."
228. Carlos Manuel Vázquez, W(h)ither Zschernig? 46 VILL. L. REV. 1259, 1262 (2001). Professor Vázquez rightly notes that Zschernig's general concern about state interference with foreign relations influences a variety of other doctrines governing the interaction of state and federal law in foreign affairs cases, including statutory preemption of state actions bearing on foreign relations.
229. See id. at 1266;
230. see also American Ins. Assn. v. Garamendi, 539 U.S. 396, 419-20 (2003) (invoking Zschernig to inform a decision concerning the preemptive effect of a federal executive order). But these narrower doctrines are not nearly so universally available in foreign affairs removal situations.
231. As long as Zschernig remains good law, however, an argument predicated upon it can at least plausibly be advanced in a wide variety of cases implicating foreign relations. This poses a procedural conundrum: Because of the cautious way that courts have generally applied Zschernig in practice, courts seem likely to reject on the merits a claim that state tort liability is preempted in a case like Torres, for example. Arguments grounded in federal law generally need not be meritorious, however, inorder to support the exercise of federal question jurisdiction. See, e.g., Bell v. Hood, 327 U.S. 678 (1946). Applying that principle in the present context would have the effect of validating virtually any instance of foreign affairs removal. Perhaps the best answer is to treat any potential Zschernig argument as a challenge not to the plaintiff's claim on the merits but rather to the state court's exercise of jurisdiction over the case. This would be consistent with what is really going on in the cases, and it would allow the federal district court to evaluate Zschernig's applicability in the context of a motion for remand, sending the case back to state court in most cases. Any application of Zschernig, of course, will raise questions concerning the courts' competence to evaluate foreign affairs interests.
232. See infra note 170 and accompanying text.
233. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
234. see also Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951) ("The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.").
235. Ins. Corp. of Ir., Ltd. V. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02 (1982) (quoting U.S. CONST, art. III, § 1). A similar restriction on the Supreme Court's expansion of its appellate jurisdiction would rest on the Exceptions Clause.
236. See supra note 96.
237. See Goldsmith, supra note 165, at 1671 (noting the "blur[ring] of the distinction between foreign and domestic relations along several axes");
238. Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1247-49 (1999) ("[i]n recent years there has been a marked blurring of the distinction between foreign and domestic affairs");
239. Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 167 (2001) (same).
240. Baak, supra note 1, at 1511;
241. see generally Goldsmith, supra note 166, at 1623 (questioning the competence of judges to evaluate foreign affairs interests without guidance from the political branches).
242. In practice, of course, the nation inevitably speaks in many voices on many issues. See generally Sarah H. Cleveland, Crosby and the 'One- Voice ' Myth in U.S. Foreign Relations, 46 VILL. L. REV. 975 (2001). But adding a direct voice for federal judges to the cacophony hardly seems like a positive step.
243. See Baak, supra note 1, at 1509-10 (suggesting that "[i]nviting foreign governments to play a role in a federal court's determination of jurisdiction actually increases the possibility that a foreign government will be offended").
244. Franchise Tax Bd. of Calif, v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983)
245. (describing the holding of Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968)).
246. See generally Gil Seinfeld, The Puzzle of Complete Preemption, 155 U. PA. L. REV. 537 (2007);
247. Garrick B. Pursley, Rationalizing Complete Preemption after Beneficial National Bank v. Anderson: A New Rule, a New Justification, 54 DRAKE L. REV. 371 (2006).
248. See Trevor W. Morrison, Complete Preemption and the Separation of Powers, 155 PENNUMBRA 186, 187 (2007), http://www.pennumbra.com/ issues/articles/155-3/Morrison.pdf ("In effect, complete preemption operates as an exception to the well-pleaded complaint rule").
249. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 7 (2003).
250. 390 U.S. 557(1968).
251. Franchise Tax Bd., 463 U.S. at 23. I quote Justice Brennan's explication of Avco in Franchise Tax Board by necessity, because Avco itself said very little about why it permitted removal.
252. See Beneficial Nat'l Bank, 539 U.S. at 14 (Scalia, J., dissenting) (observing that "the opinion in Avco failed to clarify the analytic basis for its unprecedented act of judicial alchemy").
253. Franchise Tax Bd., 463 U.S. at 23-24.
254. See 390 U.S. at 560.
255. 539 U.S. 1 (2003).
256. See 12 U.S.C. §§ 85 (permissible rates of interest), 86 (remedies)
257. 539 U.S. at 11.
258. The majority framed "the dispositive question in this case" as follows: "Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable." Id. at 9.
259. See id. at 8 ("When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.");
260. Seinfeld, supra note 172, at 567-68;
261. Mary P. Twitchell, Characterizing Federal Claims: Preemption, Removal, and the Arising-Under Jurisdiction of the Federal Courts, 54 GEO. WASH. L. REV. 812, 829 (1986) (reading Avco for the proposition "that in analyzing jurisdiction, a federal judge may need to make an independent assessment of the gravamen of the complaint").
262. See, e.g., Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 310 n.5 (3d Cir. 1994).
263. See generally Tristin K. Green, Comment, Complete Preemption-Removing the Mystery from Removal, 86 CALIF. L. REV. 363, 371-79 (1998).
264. Ms. Green traces the term "artful pleading" back to Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981), which stated that "courts 'will not permit plaintiff to use artful pleading to close off defendant's right to a federal forum . . . [and] occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiffs characterization." Id. at 397 n.2
265. (quoting 14 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3722 at 564-66 (1976)). Moitie was a case about res judicata; it held that a plaintiff should not be allowed to avoid the preclusive effect of a prior adverse judgment on a federal claim by repleading what was functionally the same claim under state law.
266. See id. at 397 n.2, 402. That tells us little about the distinct issue of complete preemption.
267. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987);
268. see also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) ("Of course the party who brings a suit is master to decide what law he will rely upon.");
269. Twitchell, supra note 183, at 821-22 (collecting cases). Professor Twitchell rightly notes that there are exceptions to this rule.
270. See id. at 822-25. The trick, of course, is not to construe these exceptions so broadly as to swallow the general rule of plaintiff choice.
271. See Friedman, supra note 116, at 1273 (commenting that the complete preemption situation "essentially is no different than when a defendant argues that a state statutory cause of action is unconstitutional").
272. 539 U.S. at 18 (Scalia, J., dissenting);
273. see also Seinfeld, supra note 172, at 553-54 n.59.
274. This would be the case if, for example, if a state-law suit against a foreign sovereign omitted to acknowledge that the defendant was, in fact, a foreign sovereign or to plead one of the requisite federal-law predicates to liability under the Foreign Sovereign Immunities Act.
275. See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986) ("Jurisdiction may not be sustained on a theory that the plaintiff has not advanced.").
276. Morrison, supra note 173, at 187, 188.
277. See Mesa v. California, 489 U.S. 121, 136-37 (1989) (reading the federal officer removal statute to require the assertion of a federal defense, for the reason that so construed, the statute would avoid any constitutional difficulty under Osborne's interpretation of Article III).
278. See 42 U.S.C. §§ 2014(hh) ("A public liability action shall be deemed to be an action arising under section 170, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section."), 2210(n)(2) ("With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place . . . shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission or the Secretary, as appropriate, any such action pending in any State court . . . shall be removed ... to the United States district court having venue under this subsection."). The Supreme Court described the significance of these provisions as follows: By its unusual preemption provision, see 42 U.S.C. § 2014(hh), the Price-Anderson Act transforms into a federal action, "any public liability action arising out of or resulting from a nuclear accident," § 2210(n)(2). The Act not only gives a district court original jurisdiction over such a claim,
279. see ibid., but provides for removal to a federal court as of right if a putative Price-Anderson action is brought in a state court,
280. see ibid. Congress thus expressed an unmistakable preference for a federal forum, at the behest of the defending party, both for litigating a Price-Anderson claim on the merits and for determining whether a claim falls under Price-Anderson when removal is contested.
281. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-85 (1999).
282. Beneficial National Bank, 539 U.S. at 13 (Scalia, J., dissenting);
283. see also Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (stating that "a case may not be removed to federal court on the basis of. . . the defense of pre-emption");
284. Gully v. First Nat'l Bank, 299 U.S. 109, 116 (1936) ("By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby.").
285. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
286. If I am right about the relationship between preemption and Professor Mishkin's version of protective jurisdiction, then Mishkin's view could be implemented, without stretching current Article III doctrine, by a statute permitting removal on the basis of a federal preemption defense.
287. Federated Dept. Stores v. Moitie, 452 U.S. 394, 397 n.2 (1981). In Moitie, the Court acknowledged that removal of "essentially federal" claims may sometimes be appropriate, without exploring the scope or limits of that principle.
288. Seinfeld, supra note 172, at 568.
289. 481 U.S. 58 (1987).
290. Brief for the United States as Amicus Curiae in No. 02-306, Beneficial National Bank v. Anderson, at 18
291. (quoted in Beneficial National Bank, 539 U.S. at 20 (Scalia, J., dissenting);
292. see also Twitchell, supra note 183, at 819 (defending complete preemption based on fear that state courts will "err on the side of state law and find preemption less frequently than Congress intended").
293. 539 U.S. at 20-21;
294. see also id. at 21 ("The rational response to the United States' concern is to eliminate the well-pleaded complaint rule entirely.").
295. See Seinfeld, supra note 172, at 566 (observing that the existence of an exclusive federal cause of action "is both an unsure indicator that fundamental jurisdictional policies are implicated . . . and significantly underinclusive as a means of singling out those preemptive federal statutes" that establish an "unusually potent" interest in uniformity). Professor Seinfeld speculates that the Court has emphasized the exclusive federal cause of action variable largely as a way of disguising the reality that complete preemption represents an exception to the well-pleaded complaint rule.
296. See id. at 566-67.
297. Professor Seinfeld purports to distinguish this "regulatory uniformity" interest, which "var[ies] from statute to statute," from an always-present interest in "equal-application uniformity." See id. at 573. Both interests arise from the unfairness of subjecting the subjects of regulation to divergent rules, however, so that it is hard to see what the distinction is.
298. See id. at 573-75.
299. Hines v. Davidowitz, 312 U.S. 52, 78-79 (1941) (Stone, J., dissenting). Some scholars, moreover, have persuasively challenged the very legitimacy of field preemption. See, e.g., Stephen A. Gardbaum, The Nature of Preemption, 19 CORNELL L. REV. 767 (1994).
300. See, e.g., Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42 (2002) (discussing the extent to which ERISA's "saving clause" provides a safe harbor from preemption for state laws regulating insurers);
301. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 366-67 (2002) (parsing the differences between HMO qua insurer and HMO qua healthcare provider to save the substance of an Illinois insurance regulation from ERISA preemption);
302. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147-19 (2001) (finding too onerous, and thus preempted by ERISA, state requirements dictating how employers may determine beneficiaries of ERISA-governed plans).
303. See Morrison, supra note 173, at 192.
304. Cf. Twitchell, supra note 183, at 862 ("By placing [preemption] questions in the hands of the states at the outset, we may balance the power of the central government with a countervailing state-oriented weight.").
305. Cf. Geier v. Am. Honda Motor Co., 529 U.S. 861, 894 (2000) (Stevens, J., dissenting) ("When a state statute, administrative rule, or common-law cause of action conflicts with a federal statute, it is axiomatic that the state law is without effect. U.S. Const, art. VI, cl. 2 . . . On the other hand, it is equally clear that the Supremacy Clause does not give unelected federal judges carte blanche to use federal law as a means of imposing their own ideas of tort reform on the States.").
306. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-emption cases, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'")
307. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
308. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005) (upholding Congress's power, under the Commerce Clause, to preempt state law permitting the medicinal use of homegrown marijuana);
309. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733 (2005) (defending judicial "compensating adjustments" designed to protect state autonomy from federal incursions).
310. Similar problems have always plagued the more general debate about "parity"-that is, whether the state and federal courts are equally competent and sympathetic with regard to federal claims. See HART & WECHSLER, supra note 34, at 324-25 (identifying difficulties inherent in empirical measures of parity);
311. Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233, 273 (1988) (concluding that "[a]lthough parity is an empirical question, no empirical answer seems possible").
312. See, e.g., Seinfeld, supra note 172, at 572 (observing that "concerns relating to state court bias are historically contingent");
313. Morrison, supra note 173, at 192 (observing that "the federal courts' superior capacity to produce federal uniformity" is also contingent).
314. See Morrison, supra note 173, at 194.
315. Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
316. Beneficial Nat'l Bank, 539 U.S. at 18 (Scalia, J., dissenting).