The federal courts as a franchise: Rethinking the justifications for federal question jurisdiction

California Law Review

Volumn 97, Issue 1, 2009, Pages 95-159

  Seinfeld, Gil ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 62249117089     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (200)

1. Congress established general federal question jurisdiction prior to 1875, see Act of Feb. 13, 1801, ch. 4, § 11, 2 Stat. 89, 92, but this measure was short-lived, see Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132 (repealing Act of Feb. 13, 1801).
2. I have, in prior work, highlighted only the first two of these justifications for federal question jurisdiction, and treated the issue of federal judicial expertise in the interpretation of federal law as a component of the argument that federal judges are superior to state judges when it comes to interpretive uniformity. See Gil Seinfeld, The Puzzle of Complete Preemption, 155 U. PA. L. REV. 537, 537 (2007). It is more appropriate to treat the expertise argument as entirely distinct from the uniformity claim, and I do so in this article.
3. See, e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005); Tafflin v. Levitt, 493 U.S. 455, 464 (1990); Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 809 n.6, 826-27 (1986) (Brennan, J., dissenting); Hathorn v. Lovorn, 457 U.S. 255, 271 (1982) (Rehnquist, J., dissenting); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 483-84 (1981); see also infra notes 27, 37, 43 (citing cases advancing fragments of the conventional account). The Supreme Court's repetition of the conventional wisdom relating to federal question jurisdiction in Grable-it stated that such jurisdiction allows for "resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues," Grable, 545 U.S. at 312-has received considerable attention from the lower federal courts. Since Grable was handed down in 2005, this fragment of the decision has been quoted verbatim by the lower federal courts at least thirty-seven times.
4. The most influential statement of this three-part justification for federal question jurisdiction comes from the American Law Institute's Study of the Division of Jurisdiction Between State and Federal Courts, published in 1969. See AM. LAW INST., STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 164-68 (1969) [hereinafter ALI STUDY]; see also, e.g., David P. Currie, The Federal Courts and the American Law Institute: Part II, 36 U. CHI. L. REV. 268, 268 (1969); Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. REV. 1071, 1083 (1974); Richard D. Freer, Of Rules and Standards: Reconciling Statutory Limitations on "Arising Under" Jurisdiction, 82 IND. L.J. 309, 331 (2007); Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157, 158-59 (1953); Robert J. Pushaw, Jr., A Neo-Federalist Analysis of Federal Question Jurisdiction, 95 CALIF. L. REV. 1515, 1517 (2007); Martin H. Redish, Reassessing the Allocation of Judicial Business Between the State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles", 78 VA. L. REV. 1769, 1787 & n.104 (1992); Michael Wells, "Available State Remedies" and the Fourteenth Amendment: Comments on Florida Prepaid v. College Savings Bank, 33 LOY. L.A. L. REV. 1665, 1683 (2000) [hereinafter Wells, "Available State Remedies"]; Patti Alleva, Prerogative Lost: The Trouble with Statutory Federal Question Doctrine After Merrell Dow, 52 OHIO ST. L.J. 1477, 1499-1500 (1991); Christopher A. Cotropia, Counterclaims, the Well-Pleaded Complaint, and Federal Jurisdiction, 33 HOFSTRA L. REV. 1, 37-38 (2004); Douglas D. McFarland, The True Compass: No Federal Question in a State Law Claim, 55 U. KAN. L. REV. 1, 50 (2006); see also infra notes 28, 38, 44 (citing commentators advancing fragments of the conventional account). Prominent commentators occasionally neglect the expertise argument for federal question jurisdiction in favor of the bias and uniformity themes; see, e.g., ERWIN CHEMERINSKY, FEDERAL JURISDICTION 271-72 (5th ed. 2007); David P. Currie, Res Judicata: The Neglected Defense, 45 U. CHI. L. REV. 317, 328 (1978). Less prominent ones do too. See supra note 2.
5. I do not have in mind here the well-pleaded complaint rule, even though it filters out of the federal courts many cases in which concern relating to the even-handed, uniform, or expert interpretation of federal law might be justified. See, e.g., ALI STUDY, supra note 4, at 188 ("The statutory construction that bars plaintiff from commencing in federal court, or defendant from removing thereto, a case in which there is a federal defense to a state-created claim... is inconsistent with the reasons that justify original federal question jurisdiction.") (citation omitted); Donald L. Doernberg, There's No Reason for it; It's Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 HASTINGS L.J. 597, 600 (1987) ("[T]he [well-pleaded complaint] rule is irrational because it is a mechanical rule that ignores important policy considerations underlying the existence of federal question jurisdiction."). I do not count this particular tension between theory and practice among the reasons to doubt the vitality of the bias-uniformity-expertise model because the exclusion of cases from the federal courts under the well-pleaded complaint rule is motivated not by skepticism as to the soundness of the bias-uniformity-expertise account, but by concern that the dockets of the federal courts would be overloaded if all cases involving questions of federal law-whether raised by plaintiff or defendant-fell within the federal courts' original or removal jurisdiction. See, e.g., Arthur R. Miller, Artful Pleading: A Doctrine in Search of Definition, 76 TEX. L. REV. 1781, 1782 (1998) (explaining that the well-pleaded complaint rule reflects "concerns about the limited resources of the federal court system"); Mishkin, supra note 4, at 162, 184-85.
6. Professor Preis has recently challenged the empirical foundations of the conventional wisdom relating to federal question jurisdiction as well. See John F. Preis, Reassessing the Purposes of Federal Question Jurisdiction, 42 WAKE FOREST L. REV. 247 (2007). Though Preis's method is substantially different from mine, our accounts of the deficiencies of the conventional model overlap, and we reach similar conclusions as to its overall (lack of) utility. Professor Preis and I arrive at very different conclusions as to how to think about the allocation of federal question cases between the state and federal courts. Compare infra Part III, with Preis, supra, at 292-300.
7. The fact that scholars have, in recent years, expressed doubt about the bias hypothesis has not been sufficient to motivate its exclusion from standard accounts of the justifications for vesting federal question jurisdiction in the federal courts. See supra notes 3-4.
8. The fact that this prong of the conventional wisdom is historically contingent does not necessarily mean that it should be treated as irrelevant to jurisdictional policy. See infra Part III.B.2.
9. I borrow this rather diplomatic bit of terminology-"technical competence"-from Burt Neuborne's classic article The Myth of Parity. Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1121 (1977) [hereinafter, Neuborne, Myth].
10. It is conceivable, for example, that the procedural and cultural homogeneity that characterizes the federal judiciary could marginally increase the likelihood that the federal courts will produce greater substantive uniformity in the interpretation of federal law. Likewise, the talk of federal judicial expertise that we see in connection with the conventional model might best be understood as a diplomatic way of referencing the superior technical competence of federal judges. See infra Part III.
11. There are differences between the technical definition of a business "franchise" and the conception of the federal courts I develop here. See infra note 116. But these differences are not germane to the core purpose served by the metaphor in this article. My description of the federal courts accords with the colloquial understanding of a "franchise;" one can walk into any individual outlet and experience it as familiar, regardless of location and regardless of whether one has been in that particular outlet before.
12. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 111 (1945) ("Diversity jurisdiction is founded on assurance to non-resident litigants of courts free from susceptibility to potential local bias."). Alternative accounts of the historical roots of diversity jurisdiction exist. See, e.g., Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 495-97 (1928) (arguing that diversity jurisdiction was established not out of concern that state courts would exhibit a generalized anti-outsider bias, but in order to provide parties with access to business-friendly federal common law and out of concern that state courts might exhibit anti-creditor bias).
13. I do not mean to suggest by this that "matters of fundamental constitutional structure" lack distributive consequences or that such consequences are irrelevant to the decision of fundamental issues of constitutional structure. My point, rather, is that, some questions (e.g., should questions of federal law be decided by the tribunals most likely to provide unbiased, uniform answers?) are more readily answered by reference to basic constitutional principles than others (e.g., should one or another class of litigants enjoy the benefit of access to the more familiar tribunal?).
14. The Judiciary Act of 1789 did not confer general federal question jurisdiction on the lower federal courts, thus leaving federal question cases to be adjudicated in the state courts. See Act of Sept. 24, 1789, 1 Stat. 73; see also Claflin v. Houseman, 93 U.S. 130, 136-37 (1876) ("rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the State courts, competent to decide rights of the like character and class ....").
15. This debate proceeds on numerous fronts. For example, the Supreme Court's construction of the constitutional language authorizing the establishment of jurisdiction in federal question cases (provided in the seminal case of Osborn v. United States, 22 U.S. (9 Wheat.) 738 (1824)), has been criticized as unduly broad. See, e.g., Textile Workers Union of Am. v. Lincoln Mills, 353 U.S. 448, 481 (1957) (Frankfurter, J., dissenting); Osborn, 22 U.S. (9 Wheat.) at 886 (Johnson, J., dissenting). In addition, the Supreme Court's interpretation of the federal statute that actually confers jurisdiction on the lower federal courts in cases involving federal questions, see, e.g., Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908), has been attacked for undermining the core purposes federal question jurisdiction is supposedly designed to serve. See ALI STUDY, supra note 4, at 188; Doernberg, supra note 5, at 600.
16. Doernberg, supra note 5, at 648. But see id. at 647 n.220 (acknowledging that, according to some, at least one of the conventional justifications for the establishment of federal question jurisdiction-the possibility that state courts will exhibit bias against federal claims-"is no longer the concern that it once was"). I address this issue in Part II. A, infra.
17. Grable, 545 U.S. at 312.
18. Preis, supra note 6, at 250 n.6. As I detail in the sections that follow, it is difficult to state with precision when this tripartite account of federal question jurisdiction rose to prominence. Certainly the most important step in bringing the bias-uniformity-expertise model as a whole to the foreground of judicial and scholarly discourse was the publication of the American Law Institute's Study of the Division of Jurisdiction Between State and Federal Courts in 1969. The three-part justification for federal question jurisdiction features prominently in the Study, see ALI STUDY, supra note 4, at 165-68, and the Study's discussion of the federal courts' role in offering evenhanded, uniform, expert interpretation of federal law has been relied upon heavily by courts and scholars ever since. Just a few years before the publication of the ALI Study, Professor William Cohen published an article that focused intently on the state-court bias and federal expertise justifications for federal question jurisdiction. See William Cohen, The Broken Compass: The Requirement that a Case Arise "Directly" Under Federal Law, 115 U. PA. L. REV. 890 (1967). In addition, the arguments for federal question jurisdiction that are advanced in the ALI Study featured prominently, some fifteen years earlier, in the work of one of the Study's lead Reporters. See Mishkin, supra note 4, at 158-59, 171-72.
19. THE FEDERALIST NO. 81, at 481 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).
20. Id.
21. See, e.g., Wythe Holt, "To Establish Justice": Politics, The Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L.J. 1421, 1441-42, 1458 (detailing widespread state refusal to vindicate claims of British creditors against U.S. debtors, the requirements of the Treaty of Paris notwithstanding, and explaining that "[a] solution to this problem was to establish federal courts, whose judges might not be so susceptible to local clamor raised by debtors") (emphasis added).
22. STANLEY I. KUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS 147-54 (1968) (describing removal provisions enacted by Congress during and soon after the Civil War and detailing the role played by state court hostility to federal law in motivating the passage of these measures). Concern about state hostility to federal law also led to the enactment of removal legislation in 1815 and 1833. See William M. Wiecek, The Reconstruction of Federal Judicial Power, 13 AM. J. LEGAL HIST. 333, 337 (1969).
23. See, e.g., Mitchum v. Foster, 407 U.S. 225, 238-42 (1972) (surveying the legislative history of the Civil Rights Act of 1871 and concluding that "[Congress] was concerned that state instrumentalities could not protect [federal] rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts").
24. Jurisdiction and Removal Act of 1875, ch. 137, § 1, 18 Stat. 470. The Jurisdiction and Removal Act, enacted on March 3, 1875, was something of a "Midnight Judges Act"-a statute passed by a lame-duck Congress on the eve of power turning over to the other major political party. Through the landslide election of 1874, Democrats were poised to take over the House of Representatives on March 4, 1875, ending fourteen years of Republican Party rule. Thus the establishment of general federal question jurisdiction can be understood as a last-ditch effort to deploy the judiciary to expand national authority in the interest of furthering Reconstruction-era policies. (Thanks to Richard Primus for pointing this out.)
25. See, e.g., G. Merle Bergman, Reappraisal of Federal Question Jurisdiction, 46 MICH. L. REV. 17, 30 (1947) ("[T]he change, which the act of 1875 introduced, was brought about largely, if not entirely, in order to provide an impartial forum for those cases in which the federal question might be prejudiced in state courts."); id. at 28, 29; Erwin Chemerinsky, The Values of Federalism, 47 FLA L. REV. 499, 511 (1995) ("General federal question jurisdiction was created in 1875 because of fears about state court hostility to federal claims."). Some have argued that the jurisdictional changes wrought by the 1875 Act were motivated not only by concern about state court hostility toward Reconstruction-era protections for blacks, but also by a desire to protect certain economic interests (chiefly those of railroads) thought to be in jeopardy at the hands of hostile state courts. See KUTLER, supra note 22, at 157-60; Wiecek, supra note 22, at 341. This "economic rights" understanding of the forces motivating the passage of the 1875 Act finds some support in the Act's legislative history. See 2 CONG. REC. 4986 (1874) (statement of Sen. Carpenter). Still, the economic rights angle lacks the resonance of claims linking the establishment of general federal question jurisdiction at that time to widespread southern racism and regional hostility to federal laws designed to curb its effects. See Thomas B. Marvell, The Rationales for Federal Question Jurisdiction: An Empirical Examination of Student Rights Litigation, 1984 WIs. L. REV. 1315, 1331 ("There is overwhelming evidence that Congress passed these laws because it believed that some state courts, especially in the South, were not upholding federal rights."). The economic rights account appears to have been advanced for the first time by Professors Frankfurter and Landis in their seminal work on federal jurisdiction, The Business of the Supreme Court. See FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 64-65 & n.31 (1927). But there is reason to view the Frankfurter/Landis claim with suspicion. As Professor Purcell has explained, the primary aim of the Frankfurter/Landis text was to increase dissatisfaction with diversity jurisdiction, which was at the time (working in tandem with the doctrine of Swift v. Tyson and the Lochner-era jurisprudence of substantive due process) deployed to serve corporate interests Frankfurter deplored. EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 79-80 (2000). Recasting the 1875 Act as a sop to westward-expanding railroads served Frankfurter's general purpose of depicting the rules governing the allocation of cases between the state and federal courts as the product of a corporate takeover of jurisdictional policy. At the very least, there is cause to wonder whether, by putting an economic-rights gloss on the radical expansion of federal jurisdiction during the Reconstruction era, Frankfurter and Landis, writing in 1928-the heyday of Lochner-style protection of economic rights-are guilty of anachronistically reading contemporary political sensibilities into an era where they do not belong. In any event, the Frankfurter/Landis account is fully consistent with the view that the expansion of federal jurisdiction in 1875 was driven by concern with state judicial bias in the adjudication of federal claims. It is simply the object of this bias that has shifted-from freed slaves to corporations.
26. See, e.g., Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. PA. L. REV. 793 (1965) (advocating expanded federal habeas corpus and removal jurisdiction in light of pervasive failure of criminal justice systems in Southern states to protect the civil rights of black defendants).
27. See sources cited supra note 3; see also Perez v. Ledesma, 401 U.S. 82,110 n.7 (1971); Reed v. Clark, 984 F.2d 209, 211 (7th Cir. 1993); Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir. 1984); Wright v. Prudential Ins. Co. of Am., 285 F. Supp. 2d 515, 522 n.17 (D.N.J. 2003); Pena v. Downey Sav. & Loan Ass'n, 929 F. Supp. 1308, 1317 n.5 (CD. Cal. 1996); Conservation Law Found., v. Browner, 840 F. Supp. 171, 177 n.ll (D. Mass. 1993). The specter of anti-federal bias is frequently raised by federal courts in connection with the federal officer removal statute, 28 U.S.C. § 1442. E.g., Watson v. Philip Morris Cos., 127 S. Ct. 2301, 2306 (2007); Wyoming v. Livingston, 443 F.3d 1211, 1222-23 (10th Cir. 2006); Paldrmic v. Altria Corp. Servs., Inc, 327 F. Supp. 2d 959, 963 (E.D. Wis. 2004).
28. See sources cited supra note 4; see also James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696, 847 (1998); Robert A. Ragazzo, Reconsidering the Artful Pleading Doctrine, 44 HASTINGS L.J. 273, 321 (1993); Carlos M. Vazquez, The Federal "Claim" in the District Courts: Osborn, Verlinden, and Protective Jurisdiction, 95 CALIF. L. REV. 1731, 1731 (2007); Michael Wells, Is Disparity a Problem?, 22 GA. L. REV. 283, 300-01 (1988) [hereinafter Wells, Disparity]. But see infra notes 48-49 and accompanying text (noting expressions of skepticism as to the bias hypothesis).
29. Here too, Hamilton provides the canonical statement of the argument. "If there are such things as political axioms," he wrote in Federalist 80, "the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed." THE FEDERALIST NO. 80, at 476 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).
30. See Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 826 (1986) (Brennan, J., dissenting) ("The reasons Congress found it necessary to add [original federal question] jurisdiction to the district courts are well known. First, Congress recognized 'the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution." (quoting Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816))); see also Erwin Chemerinsky & Larry Kramer, Defining the Role of the Federal Courts, 1990 BYU L. REV. 67, 83-84 ("The primary reason for adding this jurisdiction in 1875 is said to have been the desire for uniformity in the interpretation and application of federal law." (citing Merrell Dow, 478 U.S. at 804)); Pushaw, supra note 4, at 1522.
31. Neither Justice Brennan's opinion in Merrell Dow nor Deans Chemerinsky and Kramer provide direct support for the notion that the interest in uniformity contributed to the enactment of the federal question statute in 1875. Curiously, Justice Brennan relies principally on the Supreme Court's 1816 decision in Martin v. Hunter's Lessee to support his claim that the Congress that passed the 1875 Act was driven by concern with uniformity. He makes the same move in his dissenting opinion in Preiser v. Rodriguez, 411 U.S. 475, 514 (1973) (Brennan, J., dissenting). Hunter's Lessee, of course, provides support for the notion that there is a strong interest in a uniform interpretation of federal law (hence the holding that the Constitution permits Supreme Court review of state court decisions on federal questions). But it tells us nothing about the lower federal courts' capacity to serve this interest, and, having been decided sixty years prior to the establishment of general federal question jurisdiction, it tells us nothing about the motivations underlying Congress's decision to do so. Deans Chemerinsky and Kramer buttress their claim that the passage of the 1875 Act was motivated by the uniformity concern only by reference to Justice Brennan's anachronistic argument. Perhaps it is the flimsiness of the support mustered by Justice Brennan that led Deans Chemerinsky and Kramer to note only that the desire for uniformity is "said to have been" the primary reason for the enactment of the 1875 statute, instead of arguing that it actually was the primary reason for the jurisdictional expansion.
32. See supra notes 24-25 and accompanying text.
33. ALI STUDY, supra note 4, at 165-66.
34. Id. at 166.
35. See id. at 166-67 (invoking the small size of the federal judiciary as a reason to expect it to produce a high measure of interpretive uniformity); see also, e.g., Daniel J. Meador, Federal Law in State Supreme Courts, 3 CONST. COMMENT. 347, 354 (1986) (discussing the possibility of vesting appellate jurisdiction over decisions from state courts in the regional federal appellate courts and stating that such a scheme would "increase[e] the federal judiciary's capacity to maintain nationwide uniformity in the administration of federal law" for while "discrepancies might arise, as they do now, among the twelve courts of appeals,... the Supreme Court [would be] relieved of responsibility for reviewing fifty state courts (plus the District of Columbia and Puerto Rico)"); Michael Wells, The Impact of Substantive Interests on the Law of Federal Courts, 30 WM. & MARY L. REV. 499, 524 (1989) ("Uniformity would be served by rules that generally allocated federal law decision making to the federal rather than the state courts, because fewer differences are likely to exist between a dozen or so federal appellate courts than among fifty state supreme courts") [hereinafter Wells, Substantive Interests].
36. Of course, judges rely on prior decisions for guidance, even when those decisions come from other jurisdictions. Hence, even those who embrace this view of the relationship between the size of the federal and state judiciaries and the uniformity of federal law do not take the position that there is a one-to-one correlation between the number of courts adjudicating a given question and the quantity of interpretations likely to emerge. See infra Part II.B.
37. See sources cited supra note 3; see also, e.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 383 (1996); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 256 (1985); Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 807 (4th Cir. 1996); Browne v. Nat'l Ass'n of Sec. Dealers, No. 3:05-CV-2469-G, 2006 WL 3770505, at *5 (N.D. Tex. Dec. 14, 2006); In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 327 F. Supp. 2d 554, 567 (D. Md. 2004); Acosta v. Master Maint. & Const., Inc., 52 F. Supp. 2d 699, 708 (M.D. La. 1999).
38. See sources cited supra note 4; see also, e.g., Chemerinsky & Kramer, supra note 30, at 85 ("experience indicates that the availability of a federal forum significantly advances th[e] goal" of securing a uniform interpretation of federal law); Doernberg, supra note 5, at 647.
39. See Marvell, supra note 25, at 1333-34 (noting that "[e]xpertise, of course, was not part of the original rationale for federal question jurisdiction"); Preis, supra note 6, at 253 (characterizing the expertise-based justification for federal question jurisdiction as "newer").
40. See supra note 18.
41. ALI STUDY, supra note 4, at 164-65.
42. Id.
43. See sources cited supra note 3; see also, e.g., Preiser v. Rodriguez, 411 U.S. 475, 514 (1973); Yong Wong Park v. United States, 472 F.3d 66, 71 (3d Cir. 2006); Rogers v. Platt, 814 F.2d 683, 695 (D.C. Cir. 1987); Simpson v. Union Pac. R.R Co., 282 F. Supp. 2d 1151, 1156 (N.D. Cal. 2003); Dardeau v. W. Orange-Grove Consol. Indep. Sch. Dist., 43 F. Supp. 2d 722, 730 (E.D. Tex. 1999); Berry v. Blue Cross of Wash. & Alaska, 815 F. Supp. 359, 362 (W.D. Wash 1993); W.R. Grace & Co. v. Vikase Corp., No. 90 C 5383, 1991 WL 211647, at *1 (N.D. 111. Oct. 15, 1991).
44. See sources cited supra note 4; see also, e.g., Anthony J. Bellia, Jr., State Courts and the Making of Federal Common Law, 153 U. PA. L. REV. 825 (2005).
45. Martin H. Redish, Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 333 (1988); see also ALI Study, supra note 4, at 165 ("Whatever the proportion may be, it is apparent that federal question cases must form a very small part of the business of [state] courts, while they are a highly concentrated part of the business of the federal courts.").
46. See, e.g., Allen v. McCurry, 449 U.S. 90, 104 (1980); Stone v. Powell, 428 U.S. 465, 493 n.35 (1976) ("The policy arguments that respondents marshal. . . stem from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights. . . . Despite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States."); Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975) ("Appellee is in truth urging us to base a rule on the assumption that state judges will not be faithful to their constitutional responsibilities. This we refuse to do.").
47. See Neuborne, Myth, supra note 9, at 1105-06 ("[T]he assumption of parity is, at best, a dangerous myth, fostering forum allocation decisions which channel constitutional adjudication under the illusion that state courts will vindicate federally secured constitutional rights as forcefully as would the lower federal courts. At worst, it provides a pretext for funneling federal constitutional decision making into state courts precisely because they are less likely to be receptive to vigorous enforcement of federal constitutional doctrine.").
48. See, e.g., Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 827 n.6 (1986) (Brennan, J., dissenting) (suggesting that the contention that state courts are apt to be hostile to federal claims "may be less compelling today than it once was").
49. Neuborne, Myth, supra note 9, at 1127-28 (footnotes omitted).
50. Burt Neuborne, Parity Revisited: The Uses of a Judicial Forum of Excellence, 44 DEPAUL L. REV. 797, 798-99 (1995) [hereinafter Neuborne, Parity Revisited]. Similar claims abound in the literature. See, e.g., Erwin Chemerinsky, Ending the Parity Debate, 71 B.U. L. REV. 593, 598-99 (1991) ("[T]he domination of federal courts by judges appointed by Republican presidents undermines any basis for confidence in the federal bench as a source of systematic protection of individual liberties.... If the assumption of federal court superiority stemmed, in part, from years of Democratic appointees, then this sustained period of Republican domination diminishes any basis for greater trust in federal courts."); Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between State and Federal Courts, 104 COLUM. L. REV. 1211, 1222-23 (2004) ("Faced with an increasingly conservative federal bench and a spate of social issues being addressed in liberal ways by state governments, liberals may come again to disfavor federal courts."); Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 LAW & Soc. INQUIRY 679, 712 & n.87 (1999) (noting that the presumption that federal courts will offer "a special sensitivity toward the enforcement of federal law" requires "qualification in light of some of the ideologically 'conservative' appointments made by Presidents Ronald Reagan and George Bush"). In fact, there is evidence that at least some individual rights claims currently tend to fare better in the state courts than in the federal courts. See, e.g., DANIEL R. PINIELLO, GAY RIGHTS AND AMERICAN LAW 110-13, 275 (2003) (marking the relative success of gay rights claims in state and federal court); William B. Rubenstein, The Myth of Superiority, 16 CONST. COMMENT. 599, 599 (1999) ("Put simply, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts.").
51. See Purcell, supra note 50, at 695.
52. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (holding that the Second Amendment protects an individual right to keep and bear arms and invalidating the District of Columbia's handgun ban); Gratz v. Bollinger, 539 U.S. 244 (2003) (deeming the University of Michigan's affirmative action policy unconstitutional); Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (holding the same as Heller); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (invalidating the University of Texas Law School's affirmative action program under the Equal Protection Clause), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003).
53. See Michael Abramowicz, En Banc Revisited, 100 COLUM. L. REV. 1600, 1605 (2000) ("A number of scholars have shown that judicial ideology, even when crudely measured by political affiliation, is a statistically significant predictor of case outcomes."); see also id. at 1605 n.21 (citing authorities).
54. It is possible, of course, to advance the state bias argument for federal question jurisdiction without relying quite so heavily on the political accountability of state judges and the independence of federal judges. Hamilton's contention in The Federalist, that "the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes," can be understood this way. THE FEDERALIST NO. 81, at 481 (Alexander Hamilton) (Clinton Rossiter, ed., 1961). This passage suggests that state judges will favor local interests over national ones not because state judges must stand before the voters (though Hamilton hits this point, too, in the very next passage); rather, Hamilton suggests here that state judges might themselves be possessed of "a local spirit" and might therefore adjudicate cases accordingly, regardless of any concerns they may have about reprisals at the ballot box. State judges, that is, are of the states and, not being employees of the federal government, might be more inclined to protect state interests over federal ones. Cf. Catherine M. Sharkey, Federalism in Action: FDA Regulatory Preemption in Pharmaceutical Cases in State Versus Federal Court, 15 J. L. & POL'Y 1013, 1030 (2007) (discussing state courts' tendency in certain preemption cases to rely more heavily on state, rather than federal, law and positing that "[s]tate court judges, as creatures of state government. . . may be subtly predisposed to rely on state law"). But this line of reasoning seems more appropriate to a time-like the late eighteenth century-when the federal government might have appeared, at least to some, as something akin to an alien power seeking to impose policies and advance interests that were simply foreign. It seems fair to say that there was greater cause to fear intense, knee-jerk, anti-federal bias two hundred (or even forty) years ago than there is today. Centuries of economic and, in some ways, political and cultural interconnectedness will do that to a nation. Cf. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 944-45 (1994) ("Although some of the original thirteen states had unique political communities resulting from their separate origins, their uniqueness has long since given way to the national culture. . . . The nation-wide dispersion of ethnic and cultural identities, paralleling the dispersion of economic or ideological identities, does not mean that the concept of political community is inapplicable in the United States. What it means, rather, is that the United States has one political community, and that political community is the United States.").
55. See Friedman, supra note 50, at 1222 ("[P]arity inevitably is a dynamic rather than a static concept."). One can concede the historical contingency of the state-court bias claim and still maintain that the bias concern supplies a good reason to retain general federal question jurisdiction. There would be significant costs if Congress had to spring to action and expand or contract the scope of federal jurisdiction in response to each cycle of judicial appointments. See infra Part III.B.2.
56. Purcell, supra note 50, at 695.
57. I am assuming here that judicial treatment of claims at opposite ends of the ideological spectrum will move together as the ideological character of the bench changes. To put the point somewhat roughly, we might expect that just as it becomes more likely that a Second Amendment claim will be vindicated by a particular court, it becomes less likely that that tribunal will uphold a First or Fourth Amendment claim.
58. As is typically the case in connection with discussions of the state bias argument, I have focused my attention on claims of individual constitutional rights. Professor Sharkey, however, recently explored the question of whether state and federal courts differ systematically in their orientation toward certain federal statutory claims. In particular, Sharkey studied state and federal court decisions relating to the preemption of state law tort suits under the Federal Food, Drug, and Cosmetic Act. Sharkey reports that "[t]he difference between the paradigmatic state court approach and that of some federal courts, which read the pro-preemption directional force of Supreme Court precedents ... as support for a highly deferential view toward regulatory preemption, is unmistakable." Sharkey, supra note 54, at 1031. "In the realm of FDA prescription drug preemption," she explains, "not only are federal courts more likely to defer to federal agencies, but - equally important in terms of explaining the decision-making process of courts - federal courts are more likely than state courts to solicit the views of the FDA and the FDA is more apt to intervene on its own in federal court cases." Id. at 1020. As Sharkey notes, however, to this point, "no stark outcome-based distinction between state and federal courts has emerged." Id. at 1045; see also id. at 1045 n.110. These sorts of findings merit close attention. If the differences in approach Sharkey identifies are, in fact, accompanied by differences in outcome, it would lend considerable punch to the state bias narrative.
59. See supra notes 37-38.
60. I am speaking here about the lower federal courts only, not the federal judicial system as a whole (i.e., including the Supreme Court of the United States). There can be little doubt that, within the constraints imposed by its rather small docket, the existence of Supreme Court jurisdiction contributes meaningfully to the uniform construction of federal laws. The fact that Supreme Court review enhances uniformity as to those federal laws it is called upon to interpret lends some support to the argument for extending federal question jurisdiction to the lower federal courts. This is so because, due in part to the adequate and independent state ground doctrine, it is easier for the Supreme Court to reach questions of federal law on review of federal court decisions than on review of state court decisions. But the marginal difference in access to (already statistically unlikely) Supreme Court review for state and federal court judgments seems a rather small tail to be wagging the large dog of general federal question jurisdiction in the lower federal courts.
61. THE FEDERALIST NO. 80, at 476 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).
62. Hamilton's assessment that the thirteen state court systems could not be counted on to interpret federal law uniformly might have rested on assumptions about the competence and professionalism of state courts in the 1780s that he believed did not apply to the system of federal courts he envisioned. See DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE 249 (2005) (noting Hamilton's view that one of the principal contributions of the federal judiciary was to lie in the professionalism of the judges, a trait he found to be in short supply among state judges). And it might also have rested on assumptions about how state courts, given their lack of independence and possible hostility to the central government, might treat federal question cases; and these assumptions, too, might not extend to federal courts. This is all by way of saying that it does not follow ineluctably from Hamilton's contention that thirteen state courts could not be relied upon to provide a uniform interpretation of federal law that thirteen federal courts could not do so either. Still, it seems fair to assume that the argument in Federalist 80 rests, at least in part, on the sheer number of courts that were to be authorized to interpret federal law. Numerous others have connected the federal courts' capacity to provide a uniform interpretation of federal law to the relatively small number of federal courts of appeals. See, e.g., Chemerinsky & Kramer, supra note 30, at 73 (noting that "as long as the number of circuits was ... relatively small, the Supreme Court could handle conflicts among the courts of appeals" and explaining that every decision to increase the number of courts of appeals "increases the likelihood of splits among the circuits and simply shifts the pressure of maintaining uniformity back to the Supreme Court").
63. Act of Sept. 24, 1789, 1 Stat. 73. Federal law did not provide, at that time, for circuit judges. See id. Instead, the circuit courts, which exercised some original and some appellate jurisdiction, were each to be staffed by two Supreme Court justices and a district judge. Id.
64. rd ed. 2005), available at http://www.fjc.gov/.
65. ADMIN. OFF. OF THE U.S. COURTS, 2007 JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR 42.
66. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 465 (1990) (taking note of the "inconsistency .. . which a multimembered, multi-tiered federal judicial system already creates"); Michael E. Solimine, Rethinking Exclusive Federal Jurisdiction, 52 U. PITT. L. REV. 383, 407 (1991); Michael Wells, Naked Politics, Federal Courts Law, and the Canon of Acceptable Arguments, 47 EMORY L.J. 89, 151 (1998) ("One may maintain that the uniformity of federal law is better served by federal court adjudication of constitutional issues. A problem with this argument is that the degree of uniformity achieved by channeling cases to twelve circuits rather than fifty state courts may be minimal.") [hereinafter Wells, Naked Politics].
67. See infra text accompanying notes 69-70.
68. The exception is Preis, supra note 6.
69. Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX L. REV. 1, 56 (1994); see also Erwin Chemerinsky, FEDERAL JURISDICTION § 5.2.1 (4th ed. 2003) ("On a controversial issue, there are likely to be two or three different positions adopted among the thirteen federal courts of appeals. Even if all fifty state judiciaries consider the issue, there still are likely to be just two or three different positions taken on a given legal question. In other words, it is not clear that a greater number of courts will produce more variance in the law."); Preis, supra note 6, at 256-57, 260-62 (challenging "the supposition that, as the number of decisionmakers increases, the variability of final decisions will increase as well," and suggesting that "there is likely an 'upper limit' on the variety of interpretations of federal law").
70. Preis, supra note 6, at 260; see also id. at 261 (noting that, according to U.S. Law Week's data relating to circuit splits, 91% of divisions of authority within the federal system are two-way splits, while only 9% involve courts offering three or more interpretations of the law). It is possible that three-way splits are more likely among the state courts than the federal courts and that these data are therefore not probative, but like Professor Preis, I am inclined to believe, instead, that the relative frequency of two-way as opposed to three-or-more-way splits reveals something about the character of the questions judges are asked to decide.
71. Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 716 (1984); see also Solimine, supra note 66, at 1481-86 (noting that some disuniformity, even within the federal system, is inevitable and, sometimes, "not especially problematic").
72. See, e.g., J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 CALIF. L. REV. 913, 929 (1983) ("When circuits differ, they provide the reasoned alternatives from which the resolver of the conflict can derive a more informed analysis. The many circuit courts acts as the 'laboratories' of new or refined legal principles ... providing the Supreme Court with a wide array of approaches to legal issues and thus, hopefully, with the raw material from which to fashion better judgments."). But see Caminker, supra note 69, at 54-60 (discussing conventional arguments in favor of allowing percolation of legal issues among the lower federal courts and concluding that "the overall value of issue percolation in the lower courts for ultimate Supreme Court rulemaking has commonly been exaggerated.").
73. See, e.g., Estreicher & Sexton, supra note 71, at 716 ("From the absence of a rule of intercircuit stare decisis and the presence of state and federal courts free to disagree with one another though operating in the same geographic jurisdiction, we derive a basic premise that disuniformity, at least in the short run, may be tolerable and perhaps beneficial."); Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1155-58 (1990) (detailing the virtues of a system that does not provide for inter-circuit stare decisis and noting that "[i]ntercircuit dialogue not only benefits the quality of adjudication by the courts of appeals, but also aids the Supreme Court's adjudication of cases involving conflicts among the circuits.").
74. To the extent this is true, it is likely because of the cohesiveness of the culture across the federal courts. I address the issue of federal court culture in detail in Part III. A.
75. Indeed, as I demonstrate in the Section that follows, at the very least, the uniformity interest has worked in tandem with the interest in securing expert adjudication to drive the expanded use of specialized courts and administrative agencies.
76. There is a striking disconnect between, on the one hand, academic commentary on the allocation of cases between state and federal court-which tends to presume that the lower federal courts are equipped to advance the interest in interpretive uniformity, see supra note 38-and, on the other hand, scholarly discussions of the proper role of specialized courts and administrative agencies in the interpretation of federal law. The latter proceed from the premise that adjudication in the lower federal courts tends to undermine, rather than advance, the interest in uniformity. E.g., David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 COLUM. L. REV. 1, 65 (1975); Revesz, supra note 73, at 1155-57.
77. FRANKFURTER & LANDIS, supra note 25, atl54.
78. See generally S. REP. NO. 97-275, at 3 (1981) ("There are certain areas of the Federal law in which the appellate system is malfunctioning. A decision in any one of the twelve regional circuits is not binding on any of the others. As a result, our Federal judicial system lacks the capacity, short of the Supreme Court, to provide reasonably quick and definitive answers to legal questions of nationwide significance. . .. [T]here are areas of the law in which the appellate courts reach inconsistent decisions on the same issue, or in which-although the rule of law may be fairly clear-courts apply the law unevenly when faced with the facts of individual cases."); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 820 (1988) (Stevens, J., concurring) ("When Congress passed the Federal Courts Improvement Act in 1982 and vested exclusive jurisdiction in the Court of Appeals for the Federal Circuit to resolve appeals of claims that had arisen under the patent laws in the federal district courts, it was responding to concerns about both the lack of uniformity in federal appellate construction of the patent laws and the forum-shopping that such divergent appellate views had generated.").
79. S. REP. NO. 91-1196, at 41 (1970). The D.C. Circuit has exclusive jurisdiction over a wide range of administrative law matters including appeals from decisions of the FCC, see 47 U.S.C. § 402(b) (2006), challenges to regulations promulgated under CERCLA, see 42 U.S.C. § 9613(a) (2006), and actions pertaining to the establishment of national primary drinking water regulations, see 42 U.S.C. § 300j-7(a)(l) (2006). The establishment of such jurisdiction, of course, fosters the development of a uniform body of law in the relevant areas. See, e.g., S. Jay Plager & Lynne E. Pettigrew, Rethinking Patent Law's Uniformity Principle: A Response to Nard and Duffy, 101 Nw. U. L. REV. 1735, 1736 (2007) ("The effect of assigning specified subject matter areas to a single court of appeals is to provide nationwide uniformity in those areas").
80. Concentrating review of a class of questions in a single body promises to sharply reduce the incidence of disuniformity. See, e.g., Revesz, supra note 73, at 1155 (noting that "a specialized court not subject to review in the generalist courts of appeals . . . would guarantee immediate uniformity of federal law"). A preference for adjudication by administrative agencies or specialized courts need not follow automatically from recognition of the fact that such bodies offer significant advantages over the lower federal courts when it comes to uniformity. This is because the interest in uniformity is not the only one at stake when it comes to the adjudication of questions of federal law; other considerations might militate against channeling cases into agencies and specialized courts. See, e.g., HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 188 (1973) (noting that "there may be value in the expression of different points of view on legal issues that are subject to fair differences of opinion" and advocating a wait-and-see approach before establishing a Court of Administrative Appeals, notwithstanding his contention that the establishment of such a court would produce "a noticeable increase in uniformity"); id. at 1156-61 (detailing advantages of allowing review of the decisions of specialized courts by generalist courts of appeals notwithstanding uniformity costs).
81. Act of Sept. 24, 1789, 1 Stat. 73. The jurisdiction of the lower federal courts in these areas remains exclusive. See 18 U.S.C. § 3231 (2006) (federal crimes); 28 U.S.C. § 1333 (2006) (admiralty, maritime, and prize cases); § 1351 (suits against foreign consuls and vice-consuls).
82. E.g., 7 U.S.C. § 13a-2(2) (2006) (actions brought by state agents under the Grain Futures Act of 1922, which would later morph into the Commodities Exchange Act); 15 U.S.C. § 78aa (2006) (violations of the Securities Exchange Act of 1934); 15 U.S.C. § 80a-35(b)(5) (2006) (breach of fiduciary duty claims against investment advisers under the Investment Company Act of 1940); 15 U.S.C. § 717u (2006) (violations of the Natural Gas Act of 1938); 40 U.S.C. § 3133(b) (2006) (actions on payment bond by party furnishing labor or materials in connection with the performance of federal contracts).
83. See 15 U.S.C. § 77p (2006) (securities fraud class actions); 29 U.S.C. § 1132(e)(1) (2006) (civil enforcement under ERISA). It bears mention that the former provision referenced here-the Securities Litigation Uniform Standards Act of 1998-appears to have stripped the state courts of jurisdiction over securities class actions not because of the federal courts' supposed superior capacity to interpret federal law uniformly, but because such suits were being filed in state court, under state law, thereby circumventing the procedural constraints of the Private Securities Litigation Reform Act of 1995. See David M. Levine & Adam C. Pritchard, The Securities Litigation Uniform Standards Act of 1998: The Sun Sets on California's Blue Sky Laws, 54 Bus. LAW. 1,7-12(1998).
84. See supra note 37.
85. The line of cases exploring the federal courts' jurisdiction over state law causes of action that require resolution of "substantial" questions of federal law does, to some degree, engage the interest in uniformity, but it ultimately does little to suggest that either the Supreme Court or the lower federal courts are seriously committed to the notion of federal superiority when it comes to interpretive uniformity. In Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 816 (1986), for example, the Court explicitly rejected the notion that jurisdiction in the lower federal courts is essential to safeguarding the interest in a uniform interpretation of federal law. More recently, in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312 (2005), the Court did invoke the "hope of uniformity that a federal forum offers" as a reason to favor more expansive jurisdiction in the lower federal courts. Nevertheless, the Court has since taken pains to emphasize that Grable exemplifies but a "slim category" of cases. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700 (2006). And, the lower federal courts' treatment of the uniformity interest in post-Grable cases suggests that this interest remains more or less dormant as a doctrinal construct. Thus, some courts apply the Grable rule with absolutely no discussion of the uniformity interest. E.g., Evans v. Courtesy Chevrolet II, 423 F. Supp. 2d 669, 671-72 (S.D. Tex. 2006); Buis v. Wells Fargo Bank, 401 F. Supp. 2d 612, 617-18 (N.D. Tex. 2005); Wisconsin v. Abbott Labs., 390 F. Supp. 2d 815, 823-24 (W.D. Wis. 2005). Some downplay the role of federal jurisdiction in safeguarding the interest in uniformity. E.g., Mikulski v. Centerior Energy Corp., No. 03-4486, 2007 WL 2372301, at *4 (6th Cir. Aug. 21, 2007) (en banc) (characterizing "fear that allowing state courts to decide federal law issues might lead to some disastrous consequence, such as 50 irreconcilable interpretations of the tax code" as "histrionic"); Bennett v. Sw. Airlines Co., 484 F.3d 907, 911 (7th Cir. 2007) ("[O]ne must be wary of uniformity-based arguments articulated at a high level of generality."). Only a small number afford the issue careful attention. E.g., West Virginia ex rel. McGraw v. Eli Lilly & Co., 476 F. Supp. 2d 230, 233-34 (E.D.N.Y. 2007); In re Pharm. Indus. Average Wholesale Price Litig., 457 F. Supp. 2d 65, 75-76 (D. Mass. 2006). As I have demonstrated elsewhere, see Seinfeld, supra note 2, one could imagine the Court's jurisprudence of "complete preemption"-which authorizes the removal to federal court of state law causes of action-being grounded in the federal courts' capacity to provide a uniform interpretation of the federal statutes implicated in such suits. But the Court has made almost no effort to link the doctrine of complete preemption to the federal courts' supposed superiority when it comes to interpretive uniformity. And, indeed, if one thinks carefully about how the uniformity interest is implicated across preemptive federal statutes, the complete preemption rule, as currently constituted, makes little sense. See id. at 572-77.
86. S. 837(1984).
87. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1121 (1987) (emphasis added). It bears emphasis that Professor Strauss expresses doubt about not only the lower federal courts' capacity to bring uniformity to federal law, but the Supreme Court's ability to serve this function. And he harbored such doubts at a time when (as the title of his article suggests), the Supreme Court tended to hear roughly 150 cases each year. His concerns would hold a fortiori under today's conditions-with the Court hearing roughly half as many cases per year.
88. S. 134(1944).
89. United States v. Mead Corp., 533 U.S. 218, 234 (2001).
90. I say "in part" because, as we will see, see infra text accompanying note 113, the Chevron, Skidmore, and primary jurisdiction doctrines mandate deference to administrative agencies not only in order to secure a more uniform interpretation of federal law, but also so as to reap the benefits of agency expertise.
91. Paul R. Verkuil et al., A Black Letter Statement of Federal Administrative Law, 54 ADMIN. L. REV. 1, 49 (2002) ("In determining whether to invoke the doctrine of primary jurisdiction, courts consider (1) whether the issues in a case implicate an agency's expertise or discretion, (2) whether the issues need a uniform resolution that the agency is best situated to provide, and (3) whether the referral to the administrative agency will impose undue delays or costs on the litigants."); see also Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 439-41 (1907) (establishing the doctrine of primary jurisdiction and discussing the capacity of the ICC to supply regulatory uniformity and the lower federal courts' incapacity to do so).
92. Of course, some federal judges are substantive masters of some areas of federal law that come before them; but this is a far cry from the notion that such judges are masters of federal law generally.
93. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 956 (2000).
94. FRIENDLY, supra note 80, at 23, 34-35; RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 87-89 (1985). The explosion in federal court caseloads that took place during the latter half of the twentieth century is also attributable, in significant part, to an increase in criminal cases, to Congress's enactment of new civil rights legislation, and to Supreme Court decisions expanding the scope of federal constitutional protections and the remedies available for their violation. See generally FRIENDLY, supra note 80, at 18-27; POSNER, supra, at 59-93.
95. Richard J. Pierce, Jr., The Relationship Between the District of Columbia Circuit and Its Critics, 67 GEO. WASH. L. REV. 797, 798 (1999).
96. See, e.g., OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION 279 (1986) ("Judges are not experts, they are generalists par excellence. They are, by and large, 'lawyer-generalists' before their appointment and must remain so to serve fundamental goals of equality and neutrality within the legal system. . .. Sitting alone in courts of general jurisdiction district judges must be prepared for any subject matter. While appellate courts operate as collegial bodies, the continuous reassignment to different panels provides little opportunity for a lasting division of labor or the development of expertise."). See also Jon C. Blue, A Well Tuned Cymbal? Extrajudicial Political Activity, 18 GEO. J. LEGAL ETHICS 1, 16, n.95 (2004) ("Many academic specialists feel that because judges are required by the very nature of their positions to be generalists, they simply cannot acquire the necessary expertise ... to master the intricacies of particular legal disciplines."); Thomas O. McGarity, Multi-Party Forum Shopping for Appellate Review of Administrative Action, 129 U. PA. L. REV. 302, 366 (1980) ("[T]he whole concept of 'judicial expertise' lacks any practical meaning in a system in which courts are composed of many generalist judges, any three of whom may hear a given case on a given day."); Sarang Vijay Damle, Casenote, Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court, 91 VA. L. REV. 1267, 1277 (2005) ("Because generalist judges must handle all areas of the law, they generally are unable to develop expertise in any one area.").
97. E.g., FRIENDLY, supra note 80, at 156-57 (patent law); Edward K. Cheng, The Myth of the Generalist Judge: An Empirical Study of Opinion Specialization in the Federal Courts of Appeals, 61 STAN. L. REV. (forthcoming 2009) (manuscript at 23) (antitrust and tax) [hereinafter Cheng, Myth of the Generalist Judge]; Linda Galler, Judicial Deference to Revenue Rulings: Reconciling Divergent Standards, 56 OHIO ST. L.J. 1037, 1077-82 (1995) (tax law); Michael J. Hayes, After "Hiding the Ball" Is Over: How the NLRB Must Change Its Approach to Decisionmaking, 33 RUTGERS L.J. 523, 561-62 (2002) (labor law); Stephen A. LaGuarde, DiGiacomo v. Teamsters Pension Trust Fund of Philadelphia and Vicinity: Why and How the Supreme Court Should Resolve the Circuit Split Over Pre-ERISA Breaks in Service, 59 TAX LAW. 589, 601 (2006) (ERISA); Richard J. Pierce, Jr., Rulemaking and the Administrative Procedure Act, 32 TULSA. L.J. 185, 199 (1996) (administrative law); Scott C. Whitney, The Case for Creating a Special Environmental Court System-A Further Comment, 15 WM. & MARY L. REV. 33, 48 (1973) (environmental law); cf. Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 DUKE L.J. 1263, 1268 (2007) (scientific evidence) [hereinafter Cheng, Independent Judicial Research]; Carl Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 CORNELL L. REV. 270, 329 (1989) (science and economics). To be sure, expressions of doubt as to federal judges' expertise in certain areas of law sometimes focus on the difficulties of navigating challenging technical or scientific material, as opposed to strictly legal matters. And one could argue that such expressions of doubt do not directly implicate federal judges' expertise when it comes to raw legal analysis or interpretation, and therefore do not undermine the expertise-based argument for federal question jurisdiction. But it is hard to see the value in channeling a group of cases to a particular court on the basis of that court's supposed expertise in the relevant area of law if the factual scenarios and regulatory settings governed by that law are, in important ways, beyond the ken of the judges who are to hear the cases.
98. For less casual engagement with empirical data relating to the frequency with which federal judges interface with particular bodies of law, see Cheng, Myth of the Generalist Judge, supra note 97. Professor Cheng's project focuses on instances of opinion specialization- scenarios in which judges author a significantly greater or lesser number of majority opinions in a given area than a random distribution would yield. Through this process, Cheng argues, federal judges informally deviate from the "generalist ideal," id. at 2, and thereby allow the federal courts to capture the benefits of judicial expertise without some of the costs that attend other suggested means of increasing specialization among federal judges. Id. at 27-34. Because Professor Cheng's research measures frequency of opinion writing relative to expected frequency, his definition of "specialist" differs from the understanding of "expert" I am working with here (which focuses on total quantity of exposures rather than frequency of actual exposure relative to expected exposure).
99. See FED. JUD. CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2006, ICPSR STUDY NO. 4685 (2007); FED. JUD. CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2005, ICPSR STUDY NO. 4382 (2006); FED. JUD. CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2004, ICPSR STUDY NO. 4348 (2006); FED. JUD. CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2003, ICPSR STUDY NO. 4026 (2005); FED. JUD. CTR., FEDERAL COURT CASES: INTEGRATED DATA BASE, 2002, ICPSR STUDY NO. 4059 (2005) [hereinafter, collectively, "FJC Dataset"].
100. In keeping with the casual nature of this empirical inquiry, I make no effort to account for judicial vacancies, on the one hand, or the workload borne by senior judges, on the other. These factors cut in opposite directions for purposes of calculating the average number of exposures per judge on a given court.
101. These figures encompass environmental law generally. So, when we note that Fourth Circuit judges heard, on average, one or two environmental law cases each year over a five-year period, it is not as if they heard one or two cases each year under a single environmental statute. Rather, the figures aggregate all cases falling under the general heading of "environmental law." Many other Courts of Appeals likewise encountered questions of environmental law only infrequently: in the First Circuit, six authorized judgeships and thirty-three cases over five years; in the Fifth Circuit, seventeen authorized judgeships, forty-six cases; in the Seventh Circuit, eleven authorized judgeships, forty-four cases. See FJC Dataset, supra note 99.
102. See FJC Dataset, supra note 99.
103. The FJC database subdivides the universe of "civil rights cases" into cases involving voting, jobs, accommodations, welfare, and "other." The overwhelming majority of civil rights suits involve employment or fit into the "other" category; suits classified as "Civil Rights Voting" and "Civil Rights Welfare" amount, for the most part, to fewer than ten cases per year in each Court of Appeals. Hence, within the universe of "civil rights cases," federal court exposure to different categories of cases is uneven.
104. See FJC Dataset, supra note 99.
105. It is worth noting, moreover, that the case quantities discussed in this section include cases decided summarily or by unpublished opinion. Such cases typically command less time and attention from federal judges, and are therefore less likely than cases disposed of through a signed, published opinion to contribute meaningfully to the educative process that implicitly underlies the experience-based expertise justification for federal question jurisdiction.
106. Because so many of these areas of law make up such tiny fragments of the federal docket, while a small number of subject matter areas-such as civil rights cases and employment discrimination cases-dominate civil filings in the federal courts, the notion of experience-based expertise would appear to have purchase in a sizeable fraction of the case federal judges actually hear. But even if this is true, it is a poor argument for establishing (or retaining) general federal question jurisdiction. If experience-based expertise is to be the metric, these figures recommend special jurisdictional statutes for the high-traffic areas of law, rather than a sweeping statute ushering all federal question cases into the federal courts.
107. Cf. KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 121-57 (1960).
108. See Cuirie & Goodman, supra note 76, at 81 (explaining that "concentrated experience in handling a particular category of cases facilitates understanding," and that if judges sitting on a court "with broad jurisdiction... [are] expected to acquire their knowledge simply through frequent and continuing on-the-bench exposure to the several areas of litigation, [then]... [b]ecause of the diversity of cases coming before them, the judges could not truly be expert in any") (emphasis added).
109. The fact that I rely on the same body of evidence to support my claim that Congress and the Supreme Court harbor doubts as to the lower federal courts' capacity to serve the interests in both interpretive uniformity and expertise might be taken to diminish the force of each argument individually. At any given time (or, even, in every instance) it is possible that one or the other of these concerns is really underwriting the jurisdictional shift or deferential stance and the other may be mere window dressing. But this concern need not detain us for long. Unless either the uniformity-based or expertise-based justifications is always the operative one, while the other is always a makeweight, the sheer quantity of examples of Congress and the Court invoking these interests seems sufficient to cover both bases. In any event, the best reading of the evidence I draw upon here is simply that Congress and the Supreme Court are often concurrently concerned about the lower federal courts' capacity to serve either of these interests. One might discount the evidence I rely upon here on the ground that Congress's invocation of the interests in expert, uniform interpretation of the law are pretexts for steering cases into tribunals likely to produce preferred substantive outcomes. See, e.g., Cecil D. Quillen, Jr., Innovation and the U.S. Patent System, 1 VA. L. & Bus. REV. 207, 229 (2006). But it would take a rather strong version of this argument to support the proposition that concerns relating to uniformity and expertise did little or no work in motivating the establishment of some of these special tribunals. In the area of patent law, for example, even if it is the case that Congress's establishment of the Federal Circuit was driven in part by a desire to increase the frequency with which patents are upheld, it remains the orthodox view that the interest in uniformity loomed large in the process leading to the passage of the Federal Courts Improvement Act. See, e.g., ROBERT L. HARMON, PATENTS AND THE FEDERAL CIRCUIT 1161 (8th ed. 2007) ("The Federal Circuit was created, in part, for the purposes of achieving uniformity in the exposition and application of substantive patent law. In creating the Federal Circuit, congressional emphasis was on the need for greater uniformity in patent law and for freeing the judicial process from the forum shopping caused by conflicting patent decisions of the regional circuits.").
110. S. REP. NO. 97-275, at 6 (1981) (characterizing the establishment of the Federal Circuit as a "sensible accommodation of the usual preference for generalist judges and the selective benefit of expertise in highly specialized and technical areas") (quoting 96th Cong. Hearings of March 20, 1979, statement of Judge Jon O. Newman); .see also United States v. Fausto, 484 U.S. 439, 464 n.ll (1988) (explaining that "[b]ecause its jurisdiction is confined to a defined range of subjects, the Federal Circuit brings to the cases before it an unusual expertise that should not lightly be disregarded").
111. See, e.g., David F. Shores, Rethinking Deferential Review of Tax Court Decisions, 53 TAX LAW. 35, 74 (1999) ("Expert decision-making, as well as uniformity, was an important reason for creation of the Tax Court . . . ."); Andre L. Smith, Deferential Review of Tax Court Decisions of Law: Promoting Expertise, Uniformity, and Impartiality, 58 TAX LAW. 361, 371 (2005) ("[T]he Tax Court was created as a device by Congress to increase impartiality, reliance on expert decision making, and uniformity ....").
112. See, e.g., S. REP. NO. 99-56, at 24 (1985) ("The justification for centralized judicial review of environmental regulations is that it eliminates the possibility of conflicting interpretations of the law in different circuits and allows a single court to develop expertise in this complex area of the law."); cf Telecomms. Research & Action Ctr. v. Fed. Commc's Comm'n., 750 F.2d 70, 78 (D.C. Cir. 1984) ("Appellate courts develop an expertise concerning the agencies assigned them for review. Exclusive jurisdiction promotes judicial economy and fairness to the litigants by taking advantage of that expertise."). Of course, to say that adjudication by an expert body is a key benefit of centralizing review in the D.C. Circuit is not to say that the prospect of securing that benefit is always sufficient to justify rigging the scheme of judicial review in this fashion. See S. REP. NO. 99-56, supra, at 24 ("Centralizing review in a single court may also deprive the law of diverse views on complex legal issues, and as a result may make the task of the Supreme Court more difficult.").
113. Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 487 (2004) (explaining that "well-reasoned views of an expert administrator rest on a body of experience and informed judgment to which courts and litigants may properly resort for guidance" (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998)) (internal quotation marks omitted); Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 646 (2003) (explaining that "a court may 'refer' a question to [an agency] under the legal doctrine of 'primary jurisdiction,' which seeks to produce better informed and uniform legal rulings by allowing courts to take advantage of an agency's specialized knowledge, expertise, and central position within a regulatory regime."); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-62 (1990) ("[P]ractical agency expertise is one of the principal justifications behind Chevron deference"); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (noting, in the course of holding that reasonable agency interpretations of federal statutes are entitled to deference, that (1) the regulatory scheme at issue "is technical and complex," (2) Congress might have called upon the EPA to reach the relevant policy judgment (rather than rendering that judgment itself) because the EPA's "great expertise" left it "in a better position to do so," and (3) "[j]udges are not experts in the field."); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (noting that "the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case"); Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1344 (D.C. Cir. 1989) ("[T]he doctrine of primary jurisdiction was originally rooted in the notion that agencies have greater expertise, experience, and flexibility than courts in dealing with regulatory matters") (citations omitted), vacated on other grounds, 498 U.S. 1117 (1991).
114. My point is not that state courts are up to the task of supplying expert adjudication in these contexts; rather, I am asserting that, contrary to the conventional view, the lower federal courts appear not to be up to the task either.
115. The Supreme Court's decision in Grable provides a telling example of the ways in which the interest in securing the benefit of federal court expertise can affect decisions of jurisdictional allocation. In the course of justifying the exercise of federal jurisdiction over plaintiff's state law quiet title action, the Court emphasized that adjudication of the state law claim would require determination of questions of federal law relating to the notice the IRS must provide prior to seizing property to satisfy a tax delinquency. The Court explained that interested parties "may find it valuable to come before judges used to federal tax matters." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 315 (2005). There can be little
116. Two disclaimers: First, it turns out that Starbucks is not actually a "franchise" in the technical sense. That is, individual Starbucks stores tend to be company-operated; they are centrally owned and controlled local outposts of the Starbucks Corporation, not independently owned franchises run by individuals licensed to use the Starbucks name, trademark, etc. Second, individual federal courts are, like individual Starbucks stores, better thought of as centrally owned and controlled local outposts (in this case, of the judicial branch of government), rather than individual franchisees with significant autonomy to structure their provision of services or employment practices. Nevertheless, for two reasons, I will continue to use the term "franchise" here. First, it is far catchier than the cumbersome "centrally owned and controlled local outposts." Second, colloquial use of the word "franchise" appears to be consistent with my conception of the federal courts; the niceties of whether a national chain operates through a franchising arrangement or otherwise are lost on most people. See, e.g., DreamFranchises.com, Starbuck Franchise Facts & Information, http://www.dreamfranchises.coni/starbucksfranchise.asp (last visited May 30, 2008) ("It's funny that among all the industry related searches among search engines like Google and Yahoo, the search for 'Starbucks Franchise' is among the most popular. Yes thousands of people each month for one reason or another go looking for a 'starbucks franchise' online."). The metaphor is designed to conjure an image of the federal courts as nationwide purveyors of dispute resolution services prized in large part for the regularity of the product they provide.
117. See infra text accompanying notes 123-124 & pp. 188-89.
118. I develop this point in detail below, but it is worth noting, at the outset, that the "predictability and stability" I emphasize here are different from the "uniformity" highlighted under the conventional model. My focus is on commonalities in the process and culture of federal court litigation, while the uniformity angle developed under the conventional model trains directly on the interpretation of federal law. It is conceivable that the phenomena I give attention to here yield marginally greater conformity in terms of interpretive outcomes, but, for the reasons outlined in Part II.B, I doubt if they do so to an extent that would provide strong support for the conclusion that federal courts contribute meaningfully to the uniform interpretation of federal law.
119. I borrow this term from Professor Neuborne. See Neuborne, Myth, supra note 9.
120. See FED. R. CIV. P. 1 ("These rules govern the procedure in the United States district courts"); FED. R. APP. P. 1(a)(1) ("These rules govern procedure in the United States courts of appeals"). The Federal Rules of Evidence likewise apply across, and, at least of their own force, only to, the federal judicial system. See FED. R. EVID. 101 ("These rules govern proceedings in the courts of the United States .. .."). States are, of course, free to enact their own rules of evidence and to the extent they do, the variation in rules from state to state renders the possibility of resort to a national forum with common rules of evidence more attractive to parties called upon to litigate in courts scattered across the country. That said, the rules of evidence in the various states have much in common with one another and the federal rules; forty-two states and Puerto Rico have adopted the Federal Rules of Evidence in one form or another. See JACK B. WEINSTEIN ET AL., EVIDENCE, i (9th ed. Supp. 2007). Still, some of our most populous states, including California, New York, and Illinois, are among those not to have adopted the Federal Rules. Moreover, even the states that have adopted the Federal Rules do so to varying degrees. So it seems likely that at least some benefit in terms of homogeneity of evidentiary rules comes with litigating in the federal courts.
121. Many states also use fragments of the Federal Rules of Civil Procedure as a model for their own procedural rules. But the recent trend has been away from state conformity to the Federal Rules of Civil Procedure, see John B. Oakley, A Fresh Look at the Federal Rules in State Court, 3 NEV. L.J. 354, 355 (2003), and (as I specify below) the diversity of procedural rules one confronts as one moves from state to state can be dizzying.
122. Another benefit of access to the federal rules of procedure (one not limited to attorneys with significant practice experience in the federal courts) is that the federal rules are adapted to accommodate multi-state cases. See, e.g., David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 HARV. L. REV. 317, 328 (1977) (highlighting advantages of the federal rules relating to personal jurisdiction over out-of-state defendants, the reach of the subpoena power, consolidation through the judicial panel on multidistrict litigation, transfer, and other devices).
123. See generally CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §§ 3153-54 (discussing the large quantity and diversity of local rules in the U.S. district courts and efforts to control the disuniformity caused by the promulgation of such rules). In some cases, the rules of procedure applicable in a federal district court are not even common across the entire district but, instead, are promulgated as "standing orders" by individual judges. WRIGHT ET AL., supra.
124. Carl Tobias, Local Federal Civil Procedure for the Twenty-First Century, 11 NOTRE DAME L. REV. 533, 533 (2002).
125. See FED. R. CIV. P. 83.
126. WRIGHT ET AL., supra note 123, § 3151 ("[C]oncerns about the variety and content of local rules, and about the proliferation of standing orders of individual judges, have led to amendments of both the statute and Rule 83."); see also Amendments to Federal Rules of Civil Procedure, 192 F.R.D. 340, 382, 390-91, 393-94 (2000) (eliminating provisions of the FRCP governing discovery that retained a "local option" for individual federal courts to establish rules different from those prescribed by the FRCP themselves); id. at 384 (noting that "[t]he Rule 26(a)(1) initial disclosure provisions are amended to establish a nationally uniform practice").
127. The Local Rules Project compiled by the Judicial Conference of the United States in 1988 reports as follows: The ninety-four district courts currently have an aggregate of approximately 5,000 local rules, not including many 'subrules,' standing orders and standard operating procedures. These rules are extraordinarily diverse and their numbers continue to grow rapidly.. . . These local rules literally cover the entire spectrum of federal practice, from attorney admission and discipline, through the various stages of trial, including pleading and filing requirements, pre-trial discovery procedures, and taxation of costs. COMMITTEE ON RULES OF PRAC. & PROC, JUD. CONFERENCE OF THE UNITED STATES, LOCAL RULES PROJECT, PART I 1 (1988); see also, e.g., Gregory C. Sisk, The Balkanization of Appellate Justice: The Proliferation of Local Rules in the Federal Circuits, 68 U. COLO. L. REV. 1, 61 (1997) ("The pendulum has swung heavily from national uniformity and too far in the direction of local experimentation with little coordination among circuits.").
128. See, e.g., Tobias, supra note 124, at 543 (lamenting the fact that "[t]he substantive content of . . . local measures and the provision made for their adoption, communication, and application seemed more responsive to the needs of judges, attorneys, and parties in the local districts or of those judges vis-a-vis the counsel and litigants, than to national uniformity . . . ."). The basic thrust of Professor Tobias's argument is at odds with the point I develop here. His article tracks the increasing proliferation of local rules within the federal judiciary and advocates reforms designed to reverse this trend. Still, his argument reinforces my claim that there is widespread agreement that the homogeneity of procedural rules within the federal system (however imperfectly achieved) is a virtue. Indeed, the achievement of such homogeneity has been the stated purpose of numerous innovations in the law of federal civil procedure, beginning with the enactment of the federal rules themselves. See Tobias, supra note 124, at 537 ("The Committee [that drafted the federal rules] intended to craft a national code of procedure which was simple, uniform, and trans-substantive[.] . . . The Committee correspondingly fostered uniformity by commanding all of the federal districts to apply identical procedures.").
129. For example, an attorney attempting to initiate a class action in Mississippi might be surprised to learn that it is the only state in the country without a class action procedure of any kind. Mississippi crams all would-be class actions into joinder rules that were never intended to accommodate mass litigation. See Robert H. Klonoff, The Adoption of a Class Action Rule: Some Issues for Mississippi to Consider, 24 MIss. C. L. REV. 261, 261 (2005).
130. JACK H. FRIEDENTHAL, MARY KAY KANE & ARTHUR R. MILLER, CIVIL PROCEDURE 253 & n.15, 293-94 (4th ed. 2005); see also Oakley, supra note 121, at 361-82 (surveying different pleading regimes applicable in the state courts).
131. See Oakley, supra note 121, at 401-02; see also Glenn S. Koppel, Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process, 58 VAND. L. REV. 1167, 1184-87, 1210-46 (2005) (describing widespread variance in rules of discovery among state courts). Koppel also emphasizes the difficulties created within the federal system, from the perspective of procedural uniformity, as a result of the proliferation of local rules. Koppel, supra, at 1179-84.
132. E.g., Tobias, supra note 124; Koppel, supra note 131.
133. Burt Neuborne, Toward Procedural Parity in Constitutional Litigation, 22 WM. & MARY L. REV. 725, 733-34 (1981); see also id. at 734-35 (discussing the value of procedural familiarity to civil rights litigators).
134. Kristin Bumiller, Choice of Forum in Diversity Cases: Analysis of a Survey and Implications for Reform, 15 LAW & SOC'Y REV. 749, 772 (1981).
135. Victor E. Flango, Attorneys' Perspectives on Choice of Forum in Diversity Cases, 25 AKRON L. REV. 41, 71 (1991); see also Bumiller, supra note 134, at 772 ("[T]the choice of forum ... is influenced by the existence of separate state and federal 'cultures of attorneys' which result from lawyers' familiarity with and partiality for state or federal procedural rules.") (emphasis added); cf id. at 770 ("Among lawyers in the state sample who, when given the hypothetical situation would choose to remain in state court, the chief concerns are familiarity with judges and preference for the rules of procedure in state courts.").
136. Bumiller, supra note 134, at 770. In the Flango study, fully half of the attorneys in a sample drawn from federal court filings classified "familiarity with court operations" as "important" or "very important" to their choice of forum, while only 26% deemed this factor "unimportant." See Flango, supra note 135, at 58-61. To these attorneys, "familiarity with courts operations" was the seventh most significant of thirty-one factors influencing their choice of forum; of the six factors ranked as important or very important by a larger number of attorneys, most related to the residency of the litigants or the competence and quality of the judges. Id.
137. Burailler, supra note 134, at 752 (emphasis added). But see Flango, supra note 135, at 58-61 (finding familiarity with court operations to be among the more significant factors influencing the decision to file in federal court, but less significant than litigant status as an in-stater or out-of-stater).
138. I am not suggesting that an outsider who walks into a local coffeehouse will be so bewildered by local culture that she cannot even order something to drink. Nor am I suggesting that a litigator practicing in unfamiliar surroundings will be so befuddled as to be unable to file a claim or argue a motion. My point is that, in addition to having their own rules of practice and procedure, state courts (particularly at the trial level) have their own unique cultures and that, in some circumstances, it can be extremely challenging for an outsider to adapt to them. Nor, finally, do I mean to suggest that cultural homogeneity is necessarily a good thing. (There is plenty to be said for the charm and character of the local coffeehouse.) My point is simply that the standardization of legal culture within the federal judiciary produces a benefit for parties called to litigate in courts spread across the country by obviating the need for jurisdiction-by-jurisdiction accrual of cultural capital. Even assuming that attorneys with national practices appreciate some of the unique attributes of practice in particular jurisdictions, it is safe to assume that, on the whole, these attorneys prefer winning cases and serving their clients well-things they will often be better able to do within a familiar legal culture and under familiar rules of practice and procedure-to the prospect of stumbling upon a jurisdiction with a legal culture that somehow suits the attorney particularly well.
139. See infra text accompanying notes 182-183.
140. Professor Neuborne highlighted some of these features of the federal judiciary to support his contention that federal judges are likely to exhibit greater "technical competence" than their state court counterparts. See Neuborne, Myth, supra note 9, at 1122. I address the issue of technical competence below. See infra Part III.A.3. For present purposes, however, I mean to emphasize that judges who are selected through a single process (sometimes by more or less the same cast of characters) are likely to have more in common with one another-and thereby to foster the development of a relatively homogeneous culture-than judges who come to serve through processes of election by non-overlapping bodies of varying size or appointment by different individuals.
141. Resnik, supra note 93, at 929.
142. Id. at 938.
143. Id. at 955.
144. Id. at 944-46.
145. Id. at 929. Federal judges have taken an active role in preserving their elevated place in the hierarchy of our legal culture. This is evident, for example, in the Judicial Conference's opposition to the conferral of Article III status on bankruptcy judges, see Vern Countryman, Scrambling to Define Bankruptcy Jurisdiction: The Chief Justice, the Judicial Conference, and the Legislative Process, 22 HARV. J. ON LEGIS. 1, 7-12 (1985) (detailing aggressive lobbying efforts of Chief Justice Burger and the Judicial Conference in connection with the Bankruptcy Act of 1978), and in Chief Justice Warren's opposition to the conferral of Article III status on Tax Court judges, see Deborah A. Geier, The Tax Court, Article III, and the Proposal Advanced by the Federal Courts Study Committee: A Study in Applied Constitutional Theory, 76 CORNELL L. REV. 985, 993 (1991). In addition, as Professor Resnik has documented, over the course of the twentieth century, the Judicial Conference has lobbied more and more in opposition to the expansion of federal jurisdiction. See generally Resnik, supra note 93, at 967-69, 974-79. Constraining the scope of federal jurisdiction can be a means of assuring that federal courts are not compelled to hear cases thought to be unimportant and so "beneath them," and/or a means of assuring that the federal docket does not grow so large as to require the appointment of many more federal judges thereby diluting the prestige associated with appointment to the Article III judiciary.
146. See Paul D. Carrington, Class Struggle in Civil Procedure: A Dialogue 34-35 (unpublished and undated manuscript, on file with author).
147. On federal court being the forum for the decision of " important" matters, see Resnik, supra note 93, at 968-69. On the relationship between confining federal jurisdiction to important matters and the caliber of federal judges, see FRANKFURTER & LANDIS, supra note 25, at 251 ("[M]en of large scope and intellectual distinction-the kind of lawyers who alone ought to be put on the district courts-will refuse to be drawn into police court work."). And, on the elite status of attorneys who practice before the federal courts, see Resnik, supra note 93, at 973 (discussing the ABA's suggestion to the Judicial Conference in the 1920s that the federal courts establish special standards for the admission of lawyers).
148. To be sure, you might hire such a lawyer if her experience in Oregon covered the same legal terrain as your South Carolina suit, but that decision would be driven by the perceived value of her substantive experience, which happens to have been gained in the Oregon courts. It would not be because that experience was gained in Oregon or because it was gained in state court as opposed to federal court.
149. In part, when attorneys tout their practice experience in the federal courts in such terms they are playing to a widespread sensibility that the federal judiciary is an elite institution. Signaling that one has experience in the federal courts is a way of communicating that one has played in the big leagues. This is fully consistent with-indeed, it supplies part of the content behind-my claim that the federal judiciary is characterized by a high measure of cultural conformity.
150. Bumiller, supra note 134, at 772; see also Flango, supra note 135, at 92 (noting that, along with "quality of judges," "familiarity with court operations" was most closely associated with attorneys' decisions whether to file in state or federal court).
151. Neal Miller, An Empirical Study of Forum Choices in Removal Cases Under Diversity and Federal Question Jurisdiction, 41 AM. U. L. REV. 369,425 (1992).
152. Id. at 400-01. Attorney convenience ranked behind only one factor-"judge qualities"-in supplying a reason for these attorneys' perception of an advantage in federal court. Id. For purposes of this survey, "attorney convenience" includes "familiarity with court operations," "geographic convenience for self or client," and burdensomeness of pretrial filing requirements. Id. at 403. Though the study does not break down its findings relating to "attorney convenience" among these distinct factors, it appears that, for those respondents not appearing in rural state courts (roughly 80% of the sample), geographic convenience was a relatively less significant factor, which suggests that familiarity with court operations and/or pretrial filing requirements pulled the laboring oar. Id. This is consistent with the findings of the Flango study. See Flango, supra note 135, at 75, 78 ("most attorneys perceived no difference between state and federal courts in terms of geographical convenience").
153. Miller, supra note 151, at 402-03.
154. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything about the Legal System? Win Rates and RemovalJurisdiction, 83 CORNELL L. REV. 581, 599 (1998).
155. See supra p. 139.
156. See Purcell, supra note 50, at 717 (noting the importance of "local 'federal courtroom culture,' the complex of assumptions, attitudes, and practices that characterize[] [a] state's elite federal bench and bar").
157. This, of course, is one of the crucial premises underlying the establishment of diversity jurisdiction. See supra note 12 and accompanying text.
158. Cf. GEORG SIMMEL, THE SOCIOLOGY OF GEORG SIMMEL 96-97 (Kurt H. Wolff trans. & ed. 1950) (examining the relationship between the size of a social unit and the sorts of relationships that develop within it and noting that "it is hard to reconcile personal relations, which are the very life principle of small groups, with the distance and coolness of objective and abstract norms without which the large group cannot exist"); id. at 99-104 (discussing the role of law and custom within social groups of different sizes and characterizing custom as "belonging to smaller groups").
159. The jurisdiction of the Town and Village courts includes civil actions (state or federal) in which the amount-in-controversy is up to $3,000. See New York State Unified Court System, Town & Village Courts Introduction, http://www.courts.state.ny.us/courts/townandvillage/introduction. shtml (last visited Nov. 18, 2008). These courts are also authorized to "handle matters involving the prosecution of misdemeanors and violations that are committed within the town's or village's geographic boundaries," and to conduct arraignments and preliminary hearings in felony cases. Id.
160. William Glaberson, Broken Bench: In Tiny Courts of New York, Abuses of Law and Power, N.Y. TIMES, Sept. 25, 2006, at Al [hereinafter Glaberson, Tiny Courts].
161. William Glaberson, Broken Bench: Small-Town Justice, With Trial and Error, N.Y. TIMES, Sept. 26, 2006, at Al [hereinafter Glaberson, Small-Town Justice].
162. Bumiller, supra note 134, at 760-61.
163. Miller, supra note 151, at 412; see also id. at 428 ("[R]espondents described how locality-based bias operates, for example, through the medium of politically powerful and respected local attorneys influencing local juries.").
164. Flango, supra note 135, at 64.
165. Indeed, the authors of each of the empirical studies on which I rely heavily here emphasize that the reasons for attorney preferences for federal court reflect significant regional variation and, as is evident from the passages quoted above, insider status and immersion in the unique culture of a particular state court tend to affect forum selection more dramatically in smaller, rural counties. Cf. Shapiro, supra note 122, at 332-40 (discussing regional variation in the soundness of justifications for diversity jurisdiction).
166. Neuborne, Myth, supra note 9, at 1121. The concept of "expertise," which plays a key role in the conventional model, is distinct from the "technical competence" to which Neuborne refers and on which I focus here. A judge can be technically competent-possessed of a certain set of skills and talents relevant to the act of legal interpretation-without being expert in any particular area. So too, a judge might be relatively expert in the application of a particular body of law even if she is not, generally speaking, an especially talented legal analyst. See Marvell, supra note 25, at 1333-35 (classifying "expertise" and "caliber of judges" as distinct justifications for the establishment of federal question jurisdiction, but asserting that the latter "is a marginal reason for the existence of federal question jurisdiction" that is "not mentioned often").
167. Neuborne noted that, at the time of his writing, there were "about twice as many judges in California as in the entire federal system." Neuborne, Myth, supra note 9, at 1121. California currently employs nearly 1,500 judges and more than 2,000 "judicial officers," see JUD. COUNCIL OF CAL., ADMIN. OFF. OF THE COURTS, 2007 COURT STATISTICS REPORT, xiii, 143, again nearly doubling the total number of judges in the Article III judiciary.
168. Neuborne, Myth, supra note 9, at 1121. U.S. district court judges currently earn an annual salary of $165,200, while Court of Appeals judges earn $175,100 per year. See United States Courts, Judicial Salaries Since 1968, http://www.uscourts.gov/salarychart.pdf. Trial judges in the New York state courts, however, earn annual salaries up to $136,700 (for some trial-level judges, the figure is as low as $108,800), while associate justices of the Appellate Division (intermediate courts of appeals) earn $144,000 annually. See NAT'L CTR. FOR STATE COURTS, JUDICIAL COMPENSATION IN NEW YORK: A NATIONAL PERSPECTIVE 24 (2006). For both trial and appellate judges, then, the best paid members of the New York State judiciary earn approximately 82% as much as their federal counterparts.
169. Neuborne, Myth, supra note 9, at 1121-22.
170. Id at 1122.
171. Id. (noting that federal court clerks tend to be "among the most promising recent law school graduates," while state court clerks "when available at all, tend to be either career bureaucrats or patronage employees and may lack both the ability and dedication of their federal counterparts").
172. See, e.g., ALI STUDY, supra note 4, at 100 ("Without disparagement of the quality of justice in many state courts throughout the country, it may be granted that often the federal courts do have better judges ...."); Redish, supra note 4, at 1781 ("I should emphasize that to question the fairness of state court adjudication in cases challenging the constitutionality of state action is in no way to question the competence or integrity of state judges"); Wells, Disparity, supra note 28, at 298 (noting that "[o]ut of sensitivity or decorum," critics of doctrines constraining federal court jurisdiction "generally refrain from direct attacks on state judges").
173. See, e.g., FRIENDLY, supra note 80, at 146 (acknowledging that federal trial courts are "somewhat better" than most state courts); Shapiro, supra note 122, at 329 (suggesting that "federal courts may provide ... in some areas, better judges, at least at the trial level"); Wells, "Available State Remedies", supra note 4, at 1683 ("[F]ederal judges are, generally speaking, likely to be more talented than state judges.").
174. Glaberson, Tiny Courts, supra note 160, at Al; see also id. ("Again and again, the commission's records show, justices have failed to remove themselves from cases involving their own families.").
175. Bumiller, supra note 134, at 768.
176. Miller, supra note 151, at 400; see also id. at 431 ("Comparative judicial qualities, such as competency concerns, are much more significant to attorneys' forum selection than concerns about bias.").
177. Id. at 414. More than half of the attorneys citing judicial competence as a reason for selecting federal court classified it as a "very strong" reason for doing so. Id. at 414-15.
178. Id. at 433; see also Flango, supra note 135, at 69 ("Over half of the attorneys identified from state cases (55%) and 79% of the attorneys identified from federal cases regarded the overall competence of the judiciary and the quality of the judges as reasons for choosing federal court."); id. at 81 ("Attorneys who consider competency of the judiciary as a major consideration in forum selection decision tend to favor federal courts."); Jerry Goldman & Kenneth S. Marks, Diversity Jurisdiction and Local Bias: A Preliminary Empirical Inquiry, 9 J. LEG. STUD. 93, 98 (1980) (reporting that "judges are superior" was the reason most frequently cited by attorneys for their decision to file diversity cases in federal court).
179. See, e.g., Flango, supra note 135, at 106 ("Attorneys who usually practice before federal courts saw judges as better trained and better supported with clerks, interns and law libraries. This type of comment indicates that the greater resources available to federal courts is one reason that the 'quality' of judges is perceived to be better.").
180. Miller, supra note 151, at 446; see also Bumiller, supra note 134, at 771 ("[S]ome attorneys have a 'state court partiality' and little experience or desire to litigate in the federal courts."); Clermont & Eisenberg, supra note 154, at 599 (noting that removal to federal court has the effect of "dislodging the plaintiffs lawyer from a familiar and favored forum, and more generally reversing the various biases, costs and other kinds of inconveniences ... that led the plaintiff to prefer state court.").
181. U.S. CONST, art. III, § 2, c1. 2 (conferring jurisdiction on the federal courts over "controversies to which the United States shall be a Party").
182. See Miller, supra note 151, at 398-99.
183. The picture I paint here-of the corporate defendant as the outsider in state court, and the individual plaintiff as the insider-will not, of course, accurately depict the operation of the insider-outsider dynamic in every case. Attorneys other than those at elite national firms (and, by extension, their clients) can enjoy the benefits that come with repeat-playing in the federal courts. And some of the most extreme cases of insider advantage involve corporations litigating in state courts in their own backyards. See, e.g., Bumiller, supra note 134, at 761 (noting that several attorneys feared "the hometown influence of a corporation in a community.").
184. See supra note 161 and accompanying text.
185. Indeed, if asymmetric levels of comfort and familiarity alone were sufficient to justify allowing a party to opt out of a particular forum, this would trigger a game of jurisdictional ping-pong any time one party felt more at home in state, and the other in federal, court.
186. The existence of federal habeas corpus review for state court criminal convictions- though significantly constrained by federal statute and judicial doctrine-proceeds from precisely this premise.
187. See, e.g., FRIENDLY, supra note 80, at 90; Chemerinsky & Kramer, supra note 30, at 91 (expressing Professor Chemerinsky's view that "Constitutional claims presented by individuals are among the nation's most important litigation. . .. Effective judicial enforcement is imperative if these rights are to be protected. But federal and state courts vary in their ability and willingness to protect these rights .. ..").
188. Professor Neuborne argues that the competence gap between the state and federal courts renders the latter a more attractive forum for litigants pressing civil rights claims. This is so, he argues, because constitutional claimants bear a special burden by virtue of their seeking to upset judgments that enjoy the imprimatur of democratic decision-making and, in some cases, long-established tradition. Judges with greater technical competence, he claims, are more likely to comprehend possibly complicated arguments as to why the law requires a break from the status quo. Neuborne, Myth, supra note 9, at 1123. As Professor Neuborne acknowledges, however, the relationship he identifies between technical competence, constitutional/civil rights claims, and the legal status quo is a historically contingent one. After an era of expansion in the scope of individual constitutional rights, it would be parties seeking to contract the scope of those rights that would benefit most, by Neuborne's lights, from access to a bench of technically competent judges. Id. at 1124. Professor Neubome also claims that "[a] randomly correct decision by an inarticulate court... is of far less value to the general protection of constitutional rights than the same decision by a court which can produce an eloquent and technically precise opinion to guide similarly situated persons." Id. at 1123. And this, he claims, provides an additional reason to believe that technically competent courts are likely to be more inviting for constitutional claimants. Id. at 1124. But it is hard to see why the opposite proposition is not also true. That is, I would expect an eloquent and technically precise opinion rejecting a claim of constitutional right to carry greater weight than an inarticulate opinion of the same general ilk. On the whole, I am inclined to agree with Dean Chemerinsky's claim that "there is no reason that better judges are necessarily more disposed toward safeguarding individual liberties." CHEMERINSKY, supra note 4, at 278.
189. See Seinfeld, supra note 2, at 573.
190. There are hazards associated with encouraging Congress to think and talk openly about jurisdictional allocation in distributive terms. In particular, doing so might invite powerful interests to attempt to capture the process of jurisdictional lawmaking, and there is cause to wonder whether the conception of distributive justice likely to be instantiated in law as a result of such a process will be satisfying. But this concern does not strike me as sufficient reason to ignore the distributive character of jurisdictional lawmaking or to keep it under wraps. To begin with, there are often powerful interests, fully capable of exerting influence on the federal legislative process, on either side of a jurisdictional issue, so efforts at capture may trigger natural countermeasures. Moreover, parties with the sophistication and resources to shape Congress's construction of jurisdictional policy to accommodate their own ends are likely to do so whether or not Congress's consideration of the distributive consequences of jurisdictional decisions is transparent. If anything, encouraging congressional candor along this dimension carries the promise of attracting parties to the bargaining table who might otherwise be absent.
191. As we have seen, the model also sheds light on what some of the distributive consequences of different jurisdictional regimes might be.
192. In fairness, this would not distinguish this particular jurisdictional doctrine from other important fragments of our jurisdictional scheme. See Seinfeld, supra note 2, at 545 n.25 (noting that the well-pleaded complaint rule cannot be justified by reference to the text or legislative history of the federal question statute).
193. Of course, one hopes that congressional consideration of these issues would yield more detailed guidance than is provided by our current federal question statute and its legislative history. If it did not-if, for example, Congress considered the relevance of the franchise-like qualities of the federal courts to the proper scope of federal question jurisdiction and simply determined that the federal question statute ought to retain its current form-the interpretive challenges that the federal courts have faced in this domain for decades would endure. Courts would still be left to determine, for example, whether the presentation of a federal defense suffices to underwrite original federal question jurisdiction and whether original federal question jurisdiction will lie over a state law cause of action that raises a substantial question of federal law. The prevailing answers to these questions are provided by a patchwork of judicially created rules intermittently rooted in concerns of judicial administration (principally docket control), see, e.g., Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 811 (1986); Shoshone Mining Co. v. Rutter, 177 U.S. 505, 507 (1900), and the conventional wisdom relating to the purposes served by federal question jurisdiction, see, e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005) (reciting the tripartite mantra of federal question jurisdiction). It should come as no surprise that the doctrines that have emerged from this process have proven unstable and unsatisfying. I doubt whether this sort of approach-which would be necessary were congressional guidance with respect to federal question jurisdiction to remain as vague is it now-would prove more fruitful even if the Federal Franchise model (instead of the bias-uniformity-expertise account) were to drive congressional and judicial decision-making in this area. Under these conditions, any role played by the Franchise model in judicial decision-making would raise the legitimacy concerns outlined above; and, if fused together with efforts to control federal dockets, the jurisdictional anomalies that characterize the law today would likely persist.
194. As to some of these, it should be noted-for example, questions of constitutional law that come up in civil rights litigation-there is reason to think many state courts enjoy experience-based expertise as well.
195. Of course, the federal courts have long been in the habit of modifying the scope of federal jurisdiction under other statutory grants in light of changing perceptions of state courts' treatment of federal claims. See supra note 46 and accompanying text. Perhaps the lesson here is that the courts ought not to do this and should, instead, always treat federal courts' presumed greater hospitality to federal claims as an equally strong justification for ushering federal question cases into the federal courts.
196. E.g., Williamson v. Lee Optical, 348 U.S. 483 (1955) (rejecting due process and equal protection challenges to Oklahoma law regulating opticians and optometrists); Abrams v. United States, 250 U.S. 616 (1919) (rejecting First Amendment challenge to convictions under the Espionage Act); Twining v. New Jersey, 211 U.S. 78 (1908) (refusing to incorporate the Fifth Amendment protection against self-incrimination against the states).
197. E.g., Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005).
198. Cf. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 451 (1963) ("I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective consciousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will be called by someone else.").
199. The overlap is not perfect, of course. The diversity statute's amount-in-controversy requirement will filter out of the federal courts low value claims without regard to whether the insider/outsider dynamic is in play. And one need not be from out of state to be an "outsider" in state court. See Bumiller, supra note 134, at 762 ("Local bias is as much 'intra-state' prejudice as 'inter-state' prejudice.").
200. This should not be surprising. Seen through the prism of the Federal Franchise model, the considerations relevant to determining the proper scope of federal question jurisdiction look an awful lot like the considerations long thought to underlie the establishment of diversity jurisdiction-both revolve around the dynamics of outsider status in litigation. See supra note 12 and accompanying text. To be sure, discussions of in-staters' home-court advantage in the diversity context tend to conjure images of transparent bias against outsiders on the part of state court judges. But federal courts' exercise of jurisdiction in diversity cases not only takes the possibility of blatant bias by the state judge out of the equation; it stifles the more subtle advantages enjoyed by in-staters by virtue of their familiarity with local rules and norms as well. See Bumiller, supra note 134, at 752 (noting that "in most instances, local factors related to relative court efficiency and the attorney's familiarity with state or federal court are more important than any perceived bias") (emphasis added). Indeed, Bumiller suggests that these sorts of disparities might justify retaining diversity jurisdiction even though it "may not serve the constitutionally designed purpose of protecting the interests of out-of-state residents in foreign state courts." Id. The capacity of diversity jurisdiction to obviate the need for federal question jurisdiction in some cases is not without historical antecedent. As noted earlier, concerns relating to state judicial bias in enforcing the debt provisions of the Treaty of Paris weighed heavily on the minds of some advocates of expansive federal jurisdiction during the Founding generation. See supra note 21 and accompanying text. But the paradigmatic case involving the debt provisions of the Treaty pitted an in-stater against an out-of-stater (or alien) and, hence, could be swept into federal court through the device of diversity or alienage jurisdiction, both of which were provided for in the Judiciary Act of 1789 (though narrowed by an amount-in-controversy requirement of $500). This might explain why the 1789 Act did not establish general federal question jurisdiction despite concerns relating to enforcement of the Treaty. See generally Holt, supra note 21; see also Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 YALE L.J. 77, 89 (1997) ("Diversity and the Court's expansive interpretations of it to protect commerce and capital tended to sweep in many cases raising federal constitutional issues."); id. at 92 ("[T]he Court saw the resolution of federal questions as no mere incidental benefit of diversity jurisdiction, but rather as one of its defining purposes.")