On the efficient deployment of rules and standards to define federal jurisdiction

Vanderbilt Law Review

Volumn 65, Issue 2, 2012, Pages 509-561

  Nash, Jonathan Remy ^a  

^a EMORY UNIVERSITY   (United States)

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EID: 84860184729     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (207)

1. 545 U. S. 308, 313-14 (2005).
2. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 534 (1995);
3. Sisson v. Ruby, 497 U. S. 358, 361-62 (1990);
4. Foremost Ins. Co. v. Richardson, 457 U. S. 668, 669 (1982);
5. Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249, 268 (1972).
6. 513 U. S. at 549 (Thomas, J., concurring).
7. The statutory grant found now in 28 U. S. C. § 1332 has long been interpreted to require so-called "complete diversity"-that is, to require that no plaintiff hail from the same state as any defendant.
8. See, e.g., Strawbridge v. Curtiss, 7 U. S. (3 Cranch) 267, 267 (1806). The determination of whether diversity is met requires one to determine the parties' citizenships; this is largely rule-based. Section 1332 provides rules to determine citizenship of various entities.
9. See, e.g., 28 U. S. C. § 1332 (c) (1) (2006) (stating that a corporation is a citizen of the state of its incorporation and (if different) of the state of its principal place of business). Federal common law fills the interstices left open by the diversity statute; it also tends to take a rule-like form. For example, unincorporated entities are citizens of all states of which its members are citizens.
10. Carden v. Arkoma Assocs., 494 U. S. 185, 192-96 (1990).
11. See 28 U. S. C. § 1332 (a) (2006) (requiring the matter in controversy to exceed the sum or value of $75, 000 in order to support jurisdiction).
12. See 28 U. S. C. § 1367 (b) (2006) (indicating that, when the original "anchor" jurisdiction is based solely on diversity, the courts will not have supplemental jurisdiction under a certain list of exceptions). The application of § 1367 (b)-which purports to limit the grant of supplemental jurisdiction where it would compromise the requirements of diversity jurisdiction-has been a source of controversy since its enactment. In particular, some maintain that, taken literally, § 1367 (b) gives rise to some undesirable, unintended, and even bizarre results.
13. See, e.g., Thomas Arthur & Richard Freer, Grasping at Burnt Straws: The Disaster of the Supplemental Jurisdiction Statute, 40 EMORY L. J. 963, 966-72 (1991). Others argue that the provision should not be read literally, but instead with an eye to rational outcomes.
14. See, e.g., Thomas D. Rowe, Jr., Stephen B. Burbank & Thomas M. Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 EMORY L. J. 943, 957-59 (1991). The outcome of these debates is orthogonal to this Article, because they are debates not between rules and standards, but between two choices of rules. A recent case that resolved some questions of § 1367 (b) 's application provides an excellent example.
15. In Exxon Mobil Corp. v. Allapattah Services, Inc., the Court considered the propriety of supplemental jurisdiction as to claims in two cases by plaintiffs not parties to federal diversity "anchor" claims. 545 U. S. 546, 549 (2005). While the anchor claims in Exxon Mobil themselves met all the requirements of § 1332, the other plaintiffs' claims-joined under Rule 20 of the Federal Rules of Civil Procedure (which governs ordinary joinder of claims by multiple plaintiffs) in one case and under Rule 23 (which governs class actions) in the other-did not meet § 1332's amount-in-controversy requirement.
16. Joan Steinman, Claims, Civil Actions, Congress & the Court: Limiting the Reasoning of Cases Construing Poorly Drawn Statutes, 65 WASH. & LEE L. REV. 1593, 1596-98(2008), that is beside the point here. It suffices to note that both parts of the Court's holding are reducible to rules. The "contamination theory" applies to the complete diversity requirement. That is a rule. It does not apply to the amount-in-controversy requirement. That, too, is a rule.
17. Though they have changed over time, the requirements for class actions based upon diversity reveal a continued preference for clear rules. Before the advent of § 1367, the Supreme Court held in Supreme Tribe of Ben Hur v. Cauble that only the citizenship of the named class representatives was relevant in determining whether § 1332 (a) 's complete diversity requirement is met in a class action. 255 U. S. 356, 367 (1921). The Court also held in its 1973 decision in Zahn v. International Paper Co. that each member of a class-not just the named representatives-had to satisfy the amount-in-controversy requirement.
18. 414 U. S. 291, 291 (1973). Many commentators are of the view that Ben Hur and Zahn are inconsistent, in that under Ben Hur only the named representative counts for determinations of citizenship, while under Zahn every class member counts for the amount-in-controversy requirement.
19. See, e.g., Thomas C. Arthur & Richard D. Freer, Close Enough for Government Work: What Happens When Congress Doesn't Do Its Job, 40 EMORY L. J. 1007, 1008 n. 6 (1991);
20. Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 NW. U. L. REV. 1, 27 n. 157 (1990).
21. Richard Freer, Compounding Confusion and Hampering Diversity: Life After Finley and the Supplemental Jurisdiction Statute, 40 EMORY L. J. 445, 485-86 (1991). In Exxon Mobil, the Supreme Court held that § 1367 overruled Zahn: under § 1367, diversity jurisdiction is proper regardless of whether class members' claims meet the amount-in-controversy requirement provided that the named representative's claim meets the requirement.
22. 545 U. S. at 559-62. Exxon Mobil's holding draws into question at least the reasoning, if not also the conclusion, of Ben Hur. Ben Hur directed that only the named class representatives count for complete diversity purposes, while Exxon Mobil's mode of analysis seems to require that all class members be accounted for, whether under the primary anchor statute-§ 1332-or under the grant of supplemental jurisdiction.
23. See 13 D CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3567 & n. 45 (3d ed. 1998);
24. James E. Pfander, Protective Jurisdiction, Aggregate Litigation, and the Limits of Article III, 95 CALIF. L. REV. 1423, 1457-58 nn. 151-52 (2007). Once again, however, the identity of the victor in this debate does not impact the argument here: either the rule of Ben Hur continues (whatever the reasoning and justification) or else a different rule-that the citizenship of all class members matters and can defeat complete diversity-obtains. Either way, a rule prevails.
25. See, e.g., Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (explaining how a change in domicile may be effected only by a combination of taking up residence in a new domicile with an intention to remain there). Also, the vague test for realignment of parties-notwithstanding the pleadings but according to their "actual sides" or real interests in the dispute-is aptly described as a standard.
26. See City of Indianapolis v. Chase Nat'l Bank, 314 U. S. 63, 69 (1941). Collusion to establish diversity jurisdiction is one test that has gone against the trend toward rules. The original Judiciary Act deprived the federal courts of jurisdiction over any action by an assignee to recover on a promissory note or other chose in action "unless a suit might have been prosecuted in such court to recover the contents, if no assignment had been made."
27. Judiciary Act of 1789, § 11, 1 Stat. 78, 78 (1789). It applied without regard to whether the intent behind the assignment was to create diversity jurisdiction.
28. See, e.g., Sheldon v. Sill, 49 U. S. 441, 448-50 (1850). In contrast, the modern statute precludes jurisdiction only where "any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."
29. 28 U. S. C. § 1359 (2006). It thus requires courts to inquire, in standard-like fashion, into the intent of the litigants. The amount-in-controversy element also sometimes veers toward standard-like considerations. While the requirement is especially rule-like when monetary damages are at issue, federal common law directs that injunctive relief be evaluated by its fair market value.
30. See, e.g., In re Corestates Trust Fee Litig. (Byrd v. Corestates Bank, N. A.), 39 F.3d 61, 65 (3d Cir. 1994). This calls for some sort of estimation by the court based upon relevant evidence. As applied, then, standard-like considerations will inform whether or not the amount in controversy is met in such circumstances. Despite these variations, it is very safe to say that rules dominate the definitions and applications of diversity.
31. 130 S. Ct. 1181, 1193 (2010). The oral argument in the case also included discussions of the importance of jurisdictional rules.
32. See Transcript of Oral Argument at 24-29, 42-43, Hertz Corp., 130 S. Ct. 1181 (No. 08-1107) (debating the costs and benefits between using simple "bright line" rules for determining jurisdiction as opposed to "totality of circumstances" rules).
33. In keeping with its general tendency to define the outer boundaries of federal jurisdiction with rules, the Court has invoked rules in defining the boundaries of jurisdictional "carve-outs." For example, in Ankenbrandt v. Richards, the Court reaffirmed that "the domestic relations exception" to federal court jurisdiction "divests the federal courts of power to issue divorce, alimony, and child custody decrees." 504 U. S. 689, 703 (1992). The Court expressed the exception in rule-like terms, concluding that it extends "only" to cases involving "the issuance of a divorce, alimony, or child custody decree."
34. Marshall v. Marshall, 547 U. S. 293, 311-12 (2006).
35. See ZECHARIAH CHAFEE, JR., SOME PROBLEMS OF EQUITY 317-21 (1950) (explaining that rules are preferable to standards for jurisdictional boundaries);
36. FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 169-71 (1991) (noting application of general considerations developed in broad analysis of the usefulness of legal rules in the setting of jurisdictional tests);
37. Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 COLUM. L. REV. 1211, 1225 (2004) ("[T]he rules regarding which court can and will adjudicate a dispute ought to be bright", but only in the broad context of discussion as to how balancing state and federal court interests should inform the choice of forum for various decisions);
38. Lumen N. Mulligan, A Unified Theory of 28 U. S. C. § 1331 Jurisdiction, 61 VAND. L. REV. 1667, 1672-73 (2008) (lamenting the overly standard-like nature of federal question jurisdiction);
39. Suzanna Sherry, Logic Without Experience: The Problem of Federal Appellate Courts, 82 NOTRE DAME L. REV. 97, 145 (2006) ("[J]urisdictional doctrines are most in need of-and, until recently, most likely to follow-formal rules.").
40. See John F. Preis, Jurisdiction and Discretion in Hybrid Law Cases, 75 U. CIN. L. REV. 145, 193-202 (2006) (arguing against a standard-based test for federal question jurisdiction);
41. David W. Robertson & Michael F. Sturley, The Admiralty Extension Act Solution, 34 J. MAR. L. & COM. 209, 212-23 (2003) (critiquing the Supreme Court's introduction of a standard-like boundary in admiralty jurisdiction). Other scholars address the propriety of standards in defining federal question jurisdiction, although they do not center their arguments on the rulestandard debate.
42. See Douglas D. McFarland, The True Compass: No Federal Question in a State Law Claim, 55 U. KAN. L. REV. 1, 22-40 (2006) (arguing that the Court's accumulated analysis is problematic for many reasons, including usurping authority from Congress, running against precedent, and creating a vague guide);
43. Rory Ryan, It's Just Not Worth Searching for Welcome Mats with a Kaleidoscope and a Broken Compass, 75 TENN. L. REV. 659, 670-83 (2008) (analyzing history and implementation issues and concluding that Congress should be the one to implement a bright-line rule for the second branch of "arising under" jurisdiction).
44. See Frederic M. Bloom, Jurisdiction's Noble Lie, 61 STAN. L. REV. 971, 993 n. 127, 1001-05 (2009) (arguing that federal jurisdiction is less rigid in practice than courts tend to portray it);
45. Scott Dodson, The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1, 15-20 (2011) (arguing that rules and standards both have their place in defining federal jurisdiction);
46. Martha A. Field, The Uncertain Nature of Federal Jurisdiction, 22 WM. & MARY L. REV. 683, 684-701 (1981) (noting the ubiquity of both rules and standards in defining federal jurisdiction and arguing that the apparent mishmash is justified by different policies favoring a state or federal forum in different circumstances).
47. See Richard D. Freer, Of Rules and Standards: Reconciling Statutory Limitations on "Arising Under" Jurisdiction, 82 IND. L. J. 309, 320-42 (2007) (arguing in favor of a standard as part of the boundary of federal question jurisdiction);
48. cf. Ann Woolhandler & Michael G. Collins, Federal Question Jurisdiction and Justice Holmes, 84 NOTRE DAME L. REV. 2151, 2152 n. 10, 2188 (2009) (without normative evaluation, suggesting that the test that Justice Holmes proposed to define federal question jurisdiction was intended to be more standard-like than later commentators believed). Older scholarship argues that the balancing of factors is appropriate for determining centrality for federal question jurisdiction.
49. See William Cohen, The Broken Compass: The Requirement that a Case Arise "Directly" Under Federal Law, 115 U. PA. L. REV. 890, 907-08 (1967);
50. 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, 626-40 (1987);
51. Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157, 168-69 (1953). These works include less of the trappings of the current rule-standard debate.
52. See Tonja Jacobi & Emerson H. Tiller, Legal Doctrine and Political Control, 23 J. L. ECON. & ORG. 326, 333 (2007);
53. Jeffrey R. Lax, Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law, 74 J. Pol. (forthcoming 2012) (manuscript at 15-21) (on file with author).
54. cf. Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 398 (2005) ("[P]art of what drives textualists toward rules in the first place is their skepticism about judges' ability to apply an underlying justification consistently from case to case.").
55. See, e.g., Lockhart v. Fretwell, 506 U. S. 364, 376 (1993) (Thomas, J., concurring) ("[N]either federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.").
56. Some scholars contest whether existing canons of statutory interpretation validate federal court invocations of discretionary abstention. Compare, e.g., F. Andrew Hessick III, The Common Law of Federal Question Jurisdiction, 60 ALA. L. REV. 895, 896-915 (2009) (arguing that the courts have erroneously usurped congressional power to define the jurisdictional limit for federal question jurisdiction, with the result being a manipulable and unclear jurisdictional boundary)
57. and Robert J. Pushaw, Jr., A Neo-Federalist Analysis of Federal Question Jurisdiction, 95 CALIF. L. REV. 1515, 1542-70 (2007) (arguing that constitutional considerations in fact constrain federal court freedom not to hear cases that fall within the federal question statute)
58. and Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L. J. 71, 79-104 (1984) (arguing that neither implied delegation of authority from Congress to the federal courts nor equity justifies judicially crafted abstention doctrines)
59. with David L. Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. REV. 543, 546-74 (1985) (arguing that longstanding and robust understandings that discretion accompanies exercises of jurisdiction bolster interpretations of existing statutes that incorporate grants of discretion)
60. and Peter J. Smith, Textualism and Jurisdiction, 108 COLUM. L. REV. 1883, 1944-48 (2008) (arguing that textualist judges' purportedly textualist interpretations of jurisdictional statutes, which tend to be rule-based, have been inconsistent). This debate is orthogonal to the project at hand. To the extent that these scholars focus on the proper interpretation of existing jurisdictional statutes, they do not address the broader normative question of where, assuming decisionmakers wish to vest district courts with some discretion over the jurisdictional question, discretion ought to be laid. Beyond proper interpretation, some scholars debate whether, as a general matter, it is normatively desirable for federal courts to have discretion to decline to exercise jurisdiction.
61. with Daniel J. Meltzer, Jurisdiction and Discretion Revisited, 79 NOTRE DAME L. REV. 1891, 1904-24 (2004) (questioning the appropriate breadth of Professor Shapiro's thesis). While these arguments relate to mine, they are nonetheless fundamentally different: the question I address here is not whether discretion has a place at the jurisdictional table, but rather where that place should be. Other scholars mistakenly do not see this distinction as important.
62. See John F. Duffy, Rules and Standards on the Forefront of Patentability, 51 WM. & MARY L. REV. 609, 610-615 (2009) (rules and standards in intellectual property law);
63. Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 590-97 (1988) (rules and standards in property law);
64. Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV. 1105, 1158-59 (2003) (same);
65. David A. Weisbach, An Economic Analysis of Anti-Tax-Avoidance Doctrines, 4 AM. L. & ECON. REV. 88, 96-99 (2002) (rules and standards in tax law).
66. Hugo M. Mialon, Paul H. Rubin & Joel L. Schrag, Judicial Hierarchies and the Rule-Individual Tradeoff, 15 SUP. CT. ECON. REV. 3, 4-19 (2000) (arguing that higher courts, which are more concerned with broader applicability of holdings and cannot review all lower court holdings, are more likely to promulgate rules in order to constrain lower courts, which tend to be more concerned with the particular litigants appearing before them).
67. Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 58 (1992) (citations omitted).
68. See H. L. A. HART, THE CONCEPT OF LAW 128-31 (Clarendon Press 2d ed. 1994) (1961) (explaining that all legal concepts have frontiers, that is, cases that raise questions that are "open-textured" under existing precedent).
69. See generally R. H. Coase, The Problem of Social Cost, 3 J. L. & ECON. 1, 44 (1960) (arguing that the law should be designed to overcome transaction costs).
70. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L. J. 557, 568-69 (1992).
71. Russell B. Korobkin, Behavior Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23, 33 (2000).
72. See Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging Versus Error Correction in the Supreme Court, 63 WASH. & LEE L. REV. 271, 275-86 (2006) ("[The Supreme Court] attempts to position itself as a source of structure, guidance, and uniformity, not as a traditional court of appeals that reviews the correctness of lower court opinions.");
73. see also LARRY W. YACKLE, RECLAIMING THE FEDERAL COURTS 98 (1994) ("[T]he Supreme Court no longer has the capacity to sit as a court of error in routine cases.");
74. Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N. Y. U. L. REV. 681, 731-37 (1984) (identifying "particular types of cases that the Court should hear [as part of its discretionary docket], in keeping with the concept of the Court as manager of the judicial system").
75. (quoting SUP. CT. R. 10)).
76. See Frederick Schauer, Is It Important To Be Important? Evaluating the Supreme Court's Case-Selection Process, 119 YALE L. J. ONLINE 77, 77 (2009) (arguing that a shrinking Supreme Court docket and an increasing number of narrowly tailored opinions leave lower courts with inadequate guidance);
77. see also N. J. Schweitzer, Michael J. Saks & David Lovis-McMahon, Is the Rule of Law a Law of Rules? Judgments of Rule of Law Violations (Conference on Empirical Legal Studies, SSRN Working Paper No. 1, 439, 055, 2009), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1439055## (reporting results of experiments where individuals were forgiving of judges not following rules where doing so might have affected the fairness of the trial).
78. See, e.g., Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 701-02 (1982).
79. See, e.g., Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U. S. 635
80. 129 S. Ct. 1862, 1867 (2009) (holding that discretionary remands to state court under § 1367 (c) are not jurisdictional).
81. See Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 718 (1996) ("[W]e have⋯ located the power to abstain in the historic discretion exercised by federal courts 'sitting in equity'⋯");
82. Michael Wells, Why Professor Redish is Wrong About Abstention, 19 GA. L. REV. 1097, 1108 (1985) ("[A]bstention doctrines are applications of⋯ equitable rules.").
83. See Quackenbush, 517 U. S. at 718-21 (discussing how closely tying cases seeking injunctive relief to equity allows federal courts to dismiss such actions outright under abstention, whereas actions for damages can generally only be stayed, not dismissed).
84. See, e.g., Richard H. Fallon, Jr., Why and How to Teach Federal Courts Today, 53 ST. LOUIS U. L. J. 693, 723-24 (2009) ("[T]he Court's assertion that abstention is proper only in the exercise of equitable jurisdiction is misleading, if not disingenuous⋯");
85. Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. REV. 1071, 1086 n. 66, 1139 n. 177 (1974) (suggesting that "abandonment of the equity requirement" in the abstention doctrine may be appropriate).
86. State Farm Fire & Cas. Co. v. Tashire, 386 U. S. 523, 530-31 (1967).
87. Strawbridge v. Curtiss, 7 U. S. (3 Cranch) 267, 267-68 (1806).
88. See, e.g., 28 U. S. C. § 1367 (c) (2006) (guiding federal courts in declining to exercise supplemental jurisdiction).
89. See, e.g., Colo. River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976) (allowing abstention in exceptional circumstances in favor of pending parallel state court litigation "rest[ing] on considerations of wise judicial administration⋯ and comprehensive disposition of litigation"
90. (quoting Kerofest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U. S. 180, 183 (1952));
91. Younger v. Harris, 401 U. S. 37 (1971) (stating that abstention doctrine generally precludes federal courts from enjoining pending state court criminal prosecutions);
92. La. Power & Light Co. v. City of Thibodeaux, 360 U. S. 25, 26-29 (1959) (requiring abstention in diversity cases where the legal issues are of "special nature" to the state);
93. Burford v. Sun Oil Co., 319 U. S. 315, 332-34 (1943) (requiring abstention in favor of complex state administrative schemes);
94. R. R. Comm'n v. Pullman Co., 312 U. S. 496, 497-502 (1941) (empowering a federal district court to decline to hear a case that raises a novel and difficult federal constitutional issue in favor of state court resolution of a state claim, where resolution of the state claim might obviate the need to resolve the federal constitutional issue). In addition, a circumstance where the federal district court declines to exercise its equity jurisdiction is, in reality, not a conclusion that subject matter jurisdiction is lacking, but rather a decision not to exercise jurisdiction that otherwise exists.
95. See Colegrove v. Green, 328 U. S. 549, 565 n. 2 (1946) ("Want of equity jurisdiction does not go to the power of a court in the same manner as want of jurisdiction over the subject matter.");
96. See Quackenbush, 517 U. S. at 716-23.
97. See 28 U. S. C. § 1334 (c) (2) (2006) (directing that, with respect to the federal district courts' bankruptcy jurisdictions, upon motion of a party, "the district court shall abstain from hearing" a proceeding related to a bankruptcy case "if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction");
98. 28 U. S. C. § 1369 (b) (2006) (directing that a district court "shall abstain" in any case where "the substantial majority of all plaintiffs are citizens of a single State of which the primary defendants are also citizens", and "the claims asserted will be governed primarily by the laws of that State"). Despite these provisions' mandatory language, the determination of the circumstances under which the provisions apply seems to include standard-like considerations.
99. See Kaiser Steel Corp. v. W. S. Ranch Co., 391 U. S. 593, 594 (1968) (per curiam) (holding that "[s]ound judicial administration requires" abstention to resolve the "crucial" state law issue presented (emphasis added));
100. Thibodeaux, 360 U. S. at 28 ("[W]e have required District Courts, and not merely sanctioned an exercise of their discretionary power, to [abstain in some circumstances]⋯"). Application of Younger abstention doctrine is also mandatory.
101. See Younger, 401 U. S. at 41 ("[There is a] national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.");
102. Barry Friedman, A Revisionist Theory of Abstention, 88 MICH. L. REV. 530, 540, 542-43 (1989) ("[A]bstention is⋯ largely required under Younger.");
103. See Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 CORNELL L. REV. 1672, 1681-86 (2003) (discussing Pullman abstention).
104. Colo. River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976)
105. (quoting Kerofest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U. S. 180, 183 (1952)) (internal quotation marks omitted).
106. Textile Workers Union of Am. v. Lincoln Mills, 353 U. S. 448, 470 (1957) (Frankfurter, J., dissenting);
107. see also Hertz Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010) ("Complex tests produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim's legal and factual merits.").
108. See Hertz Corp., 130 S. Ct. at 1193 ("Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims.");
109. E.g., Gibson v. Berryhill, 411 U. S. 564, 580 (1973) (district court decision on discretionary abstention reviewed for abuse of discretion).
110. E.g., Wagner v. United States, 545 F.3d 298, 300 (5th Cir. 2008).
111. See, e.g., FED. R. CIV. P. 12 (h) (3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. " (emphasis added));
112. See Hertz Corp., 130 S. Ct. at 1193 (discussing the judicial resources at stake in litigation over jurisdiction where "complex jurisdictional tests" are involved);
113. See Hertz Corp., 130 S. Ct. at 1193 ("Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.").
114. See Hertz Corp., 130 S. Ct. at 1193 ("Simple jurisdictional rules⋯ promote greater predictability.");
115. Cf. Patricia M. Wald, Some Thoughts on Judging as Gleaned from One Hundred Years of the Harvard Law Review and Other Great Books, 100 HARV. L. REV. 887, 904 (1987) (noting that, when "[p]recedent can be found somewhere for almost any proposition[,] the value of any single precedent is diminished").
116. Cf. Jonathan Remy Nash, The Uneasy Case for Transjurisdictional Adjudication, 94 VA. L. REV. 1869, 1904-10 (2008) (discussing how various transjurisdictional procedural devices may enhance, or detract from, comity).
117. See, e.g., Hess v. Pawloski, 274 U. S. 352, 356 (1927) (stretching preexisting personal jurisdiction law, reasoning that "[m]otor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property"). Some argue that the Internet poses new problems for existing personal jurisdiction doctrines.
118. See, e.g., Alison W. Haynes, The Short Arm of the Law: Simplifying Personal Jurisdiction Over Virtually Present Defendants, 64 U. MIAMI L. REV. 133, 150-61 (2009).
119. See, e.g., 28 U. S. C. §§ 1343 (a), 1344, 1443 (2006).
120. See, e.g., AM. LAW INST., STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 165-66 (1969) (discussing the importance of uniform interpretation of federal law);
121. Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105 (1977) (criticizing contemporary Supreme Court assumptions that state and federal courts are equally competent venues for the enforcement of federal constitutional rights, because state courts are less likely than federal courts to vigorously enforce federal constitutional doctrine);
122. Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 LAW & SOC. INQUIRY 679, 694 (1999) (discussing Supreme Court rejection of the argument that state court judges could be the primary enforcers of federal constitutional rights at the turn of the nineteenth century);
123. see also RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 281 (1996) ("Because state judges can be expected to be less independent of state political forces in a state than federal judges when both are residents of a state adversely affected by federal regulation, a state court may be an unsympathetic tribunal in a case where a federal right has been created in order to correct an interstate externality.").
124. See, e.g., AM. LAW INST., supra note 105, at 164-65 (arguing that the federal courts have acquired substantial expertise in the interpretation and application of federal law);
125. Philip B. Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F. R. D. 481, 487 (1960) (noting the "principle" that federal courts are the primary experts on questions of federal law).
126. See Akhil Reed Amar, Law Story, 102 HARV. L. REV. 688, 717-18 (1989) (arguing that in juxtaposition to the "general rule that federal courts should not act as primary norm-declarers in ordinary diversity controversies posing only state law questions" is "[t]he centrality of normdeclaration in federal question cases");
127. cf. Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1495-1517, 1535-44 (1997) (describing problems with federal courts acting under Erie either to predict evolving state law or simply to decide the issue based upon a static conception of state law); (Pubitemid 127445822)
128. See Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 CALIF. L. REV. 95 (2009).
129. See, e.g., Merrell Dow Pharms., Inc. v. Thompson, 478 U. S. 804, 831 n. 6 (1986) (Brennan, J., dissenting) (discussing personal experience of substantial docket limitations, making Supreme Court review of state court judgments unrealistic);
130. HENRY J. FRIENDLY, FEDERAL JURISDICTION 102-03 (1973) (discussing the inadequacies of a potential procedure by which the Supreme Court would review state court judgments in federal civil rights cases).
131. See Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 622 (1981) (arguing that federal and state courts must share responsibilities of hearing federal claims);
132. Lonny S. Hoffman, Intersections of State and Federal Power: State Judges, Federal Law, and the "Reliance Principle", 81 TUL. L. REV. 283, 286 (2006) (noting that, practically speaking, "state courts must be depended upon to adjudicate federal rights").
133. see also Ray Forrester, The Nature of a "Federal Question", 16 TUL. L. REV. 362 (1942) (noting that statutory limits on federal question jurisdiction are needed to avoid overwhelming the federal courts).
134. See Prejudice or Local Influence Removal Act of 1867, ch. 196, 14 Stat. 558, 559;
135. Act of March 3, 1887, as corrected by Act of Aug. 13, 1888, ch. 866, 25 Stat. 433, 435;
136. for discussion, see James William Moore & Donald T. Weckstein, Diversity Jurisdiction: Past, Present, and Future, 43 TEX. L. REV. 1, 11 (1964) (describing the statute and its 1948 repeal);
137. see also David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 HARV. L. REV. 317, 339-55 (1977) (advancing a proposal under which each federal district court, by court rule, can opt out of diversity jurisdiction upon a showing that factors justifying its continuation are not met in the district). Thus, to the extent that courts have turned to policy considerations more often in construing claim-based requirements, that is because they have chosen to do so, not because they must.
138. See, e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U. S. 308, 321 (2005) (Thomas, J., concurring) ("[T]rying to sort out which cases fall within the smaller Smith category may not be worth the effort it entails.");
139. This felicitous limitation on the cost of having a claim heard in state as opposed to federal court results from choice-of-law rules that require either court to apply the same law. Erie and its progeny require federal courts hearing state law claims to apply the state law that a court of the state in which the federal court sits would apply. Erie R. R. v. Tompkins, 304 U. S. 64 (1938).
140. And the Supremacy Clause obligates state courts hearing federal law claims to apply governing federal law. U. S. CONST., art. VI, cl. 2. To be sure, there are various reasons to question the extent to which, in practice, courts from the state and federal systems will reach the same outcomes.
141. Donald H. Zeigler, Gazing into the Crystal Ball: Reflections on the Standards State Judges Should Use to Ascertain Federal Law, 40 WM. & MARY L. REV. 1143, 1154 (1999) ("State courts will sometimes go to great lengths to find a conflict in federal court decisions so that they may decide the federal question as they wish."). Still, the essential point remains that the choice of law will be the same in either forum, which at least serves to limit discrepancies in outcomes. This is not the case in many other jurisdictional settings.
142. 28 U. S. C. § 1331 (2006).
143. The Constitution authorizes Congress to confer upon the federal courts the power to hear "all cases, in Law and Equity, arising under th[e] Constitution, the Laws of the United States, and Treaties." U. S. CONST. art. III, § 2, cl. 1. This constitutional grant has been interpreted broadly to extend whenever federal law potentially "forms an ingredient" of the case.
144. See, e.g., Osborn v. Bank of the United States, 22 U. S. (9 Wheat.) 738, 823 (1824).
145. See, e.g., Louisville & Nashville R. R. v. Mottley, 211 U. S. 149, 152-53 (1908).
146. See G. Merle Bergmann, Reappraisal of Federal Question Jurisdiction, 46 MICH. L. REV. 17, 30-31, 37-38 (1947). Even if that is accurate, the fact remains that the well-pleaded complaint rule is a prophylactic rule that does not decide on a case-by-case basis whether in fact a state court will be hostile to a federal claim.
147. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 671-72 (1950) ("The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff's right even though no immediate enforcement of it was asked. But the requirements of jurisdiction-the limited subject matters which alone Congress had authorized the District Courts to adjudicate-were not impliedly repealed or modified.");
148. see also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U. S. 1, 18-19 (1983) (extending the holding of Skelly Oil to actions brought under state declaratory judgment laws in order to avoid rendering the federal Act "a dead letter"). Professor John Oakley suggests that the holding in Franchise Tax Board "is perhaps no more than a rule of abstention. "
149. John B. Oakley, Federal Jurisdiction and the Problem of the Litigative Unit: When Does What "Arise Under" Federal Law?, 76 TEX. L. REV. 1829, 1836 (1998). To the extent it is, the holding is still a rule, albeit a rule of mandatory abstention that does not lie at the jurisdictional boundary.
150. While many commentators praise the well-pleaded complaint rule, see, e.g., Arthur R. Miller, Artful Pleading: A Doctrine in Search of Definition, 76 TEX. L. REV. 1781, 1783 (1998)
151. AM. LAW INST., supra note 105, at 188-94 (to similar effect);
152. cf. Michael G. Collins, The Unhappy History of Federal Question Removal, 71 IOWA L. REV. 717, 719 (1986) (identifying as historical error the Court's decision not to allow federal defense removal, but not suggesting that the Court now reverse course). A few commentators would go further: they suggest jurisdiction be allowed on the potential for a federal issue.
153. See, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233, 315 (1988) ("[A] defendant should be able to remove a case to federal court by alleging that the outcome of the case likely will turn on a federal issue.");
154. See generally Hagans v. Lavine, 415 U. S. 528, 536-37 (1974).
155. Oneida Indian Nation of N. Y. State v. Oneida Cnty., 414 U. S. 661, 666 (1974).
156. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996)
157. ("[W]e have always treated stare decisis as a 'principal of policy', Helvering v. Hallock, 309 U. S. 106, 119 (1940)
158. and not as an 'inexorable command', Payne v. Tennessee, 501 U. S. 808, 828 (1991).
159. Am. Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916).
160. See Shoshone Mining Co. v. Rutter, 177 U. S. 505, 506, 508 (1900) (holding no federal jurisdiction since the outcome was governed by a federal statute that mandated a decision in accordance with "local customs or rules of miners in the several mining districts" to the extent that those customs and rules were not inconsistent with federal law).
161. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U. S. 1, 9 (1983) ("[I]t is well settled that Justice Holmes's test is more useful for describing the vast majority of cases that come within the district courts' original jurisdiction than it is for describing which cases are beyond district court jurisdiction. ").
162. See, e.g., Smith v. Kan. City Title & Trust Co., 255 U. S. 180, 201 (1921) (upholding "arising under" jurisdiction when a bank holder invoked a state law to challenge a bank's investment in bonds that were issued in accordance with an allegedly unconstitutional law).
163. 299 U. S. 109, 117 (1936).
164. 463 U. S. 1, 20 (1983)
165. (quoting Gully, 299 U. S. at 117).
166. 478 U. S. 804, 814 (1986).
167. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U. S. 308 (2005).
168. (quoting Christianson v. Colt Indus. Operating Corp., 486 U. S. 800, 821 (1988) (Stevens, J., concurring)).
169. One can debate to what degree each case in the Smith line contributes to the standardlike nature of the jurisdictional boundary. Justice Thomas concurred in Grable because the Court's opinion "faithfully applie[d] our precedents interpreting 28 U. S. C. § 1331."
170. 545 U. S. at 320 (Thomas, J., concurring) (citing, as examples of that precedent, Smith and Merrell Dow). According to Justice Thomas, Smith itself injected standard-like destabilization into the contours of federal question jurisdiction.
171. Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 470 (1957) (Frankfurter, J., dissenting). On the other hand, one can see Smith to allow for federal jurisdiction only when a federal issue is truly determinative of the litigation and thus lies at the true heart of the litigation. While not a precise rule, one might think that this test does not vest much discretion in the lower courts and might be applied with some predictability.
172. Cf. AM. LAW INST., supra note 105, at 179 ("The existing doctrines as to when a case raises a federal question are neither analytical nor entirely logical, but a considerable body of case law has been built up on this subject that is reasonably well understood by courts and litigants and that works well in practice."). In contrast, the later cases-especially Merrell Dow and Grable-can be seen to reshape the jurisdictional boundary much more into a standard.
173. 15 MARTIN H. REDISH ET AL., MOORE'S FEDERAL PRACTICE § 103. 31[2] (3d ed. 2011) (footnote omitted).
174. 545 U. S. 308.
175. 177 U. S. 505, 508 (1900) (finding no federal jurisdiction since outcome was governed by federal statute that mandated decision in accordance with "local customs or rules of miners in the several mining districts" to the extent that those customs and rules were not inconsistent with federal law).
176. See Judiciary Act of 1875, ch. 137, § 5, 18 Stat. 470, 472 (1875)
177. (codified as amended at 28 U. S. C. § 1331 (2006)). Professors James Chadbourn and A. Leo Levin argue that the Supreme Court erroneously viewed substantiality as a jurisdictional requirement for federal question jurisdiction under the 1875 Act; instead, they argue, cases with an insubstantial federal question should have been ruled subject to federal court jurisdiction but dismissed.
178. See James H. Chadbourn & A. Leo Levin, Original Jurisdiction of Federal Questions, 90 U. PA. L. REV. 639, 649-65 (1942);
179. see also Richard A. Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection of the Gibbs Test for Supplemental Jurisdiction, 71 CALIF. L. REV. 1399, 1433-38 (1983) (arguing that the Supreme Court's finding of a substantiality requirement is rooted in the 1875 Act and not in the Constitution).
180. But see Ray Forrester, Federal Question Jurisdiction and Section 5, 18 TUL. L. REV. 263, 276-80 (1943) (arguing that section 5 was intended simply to codify the courts' obligation to confirm the existence of subject matter jurisdiction and to act appropriately where it is found lacking). Professor Edward Hartnett has argued that § 1441 (c) in fact affords discretion to district courts to remand individual claims from removed cases.
181. Edward Hartnett, A New Trick from an Old and Abused Dog: Section 1441 (c) Lives and Now Permits the Remand of Federal Question Cases, 63 FORDHAM L. REV. 1099, 1181 (1995).
182. See Merrell Dow Pharms., Inc. v. Thompson, 478 U. S. 804, 817 (1986) ("We do not believe the question whether a particular claim arises under federal law depends on the novelty of the federal issue.").
183. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U. S. 336, 345-46 (1976) ("[O]nly remand orders issued under § 1477 (c) and invoking the grounds specified therein-that removal was improvident and without jurisdiction-are immune from review under § 1447 (d).").
184. But see Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U. S. 635
185. * (2009) (indicating perhaps some willingness to reexamine Thermtron). Migrating the standard to abstention would presumably make remand orders based upon such discretionary abstention reviewable by the courts of appeals.
186. See Carlsbad, 129 S. Ct. at 1867 (holding that discretionary remands under § 1367 (c) are not jurisdictional and, accordingly, are reviewable under the Thermtron rule). To this extent, the migration might actually increase the federal appellate courts' dockets.
187. E.g., Gibson v. Berryhill, 411 U. S. 564, 580 (1973) (stating that district court decisions on discretionary abstention are reviewed for abuse of discretion).
188. Arizonans for Official English v. Arizona, 520 U. S. 43, 77-80 (1997);
189. Bellotti v. Baird, 428 U. S. 132, 150-51 (1976).
190. See, e.g., Chez Sez III Corp. v. Twp. of Union, 945 F.2d 628, 631 (3d Cir. 1991) (describing how an appellate court reviews de novo a district court's legal determination that Pullman abstention might be appropriate and then reviews the district court's decision whether to abstain for abuse of discretion).
191. Cf. Judiciary Act of 1875, ch. 137, § 5, 18 Stat. 470, 472 (1875) (allowing litigants to seek dismissal or remand "at any time after such suit has been brought or removed"). The longer the period during which litigants are permitted to ask the court to abstain, however, the less the efficiency benefits gained by migrating the standard to the abstention phase.
192. 28 U. S. C. § 1333 (2006).
193. See, e.g., The Plymouth, 70 U. S. 20, 34-35 (1866) (stating that the true meaning of the locality rule is "that the wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction").
194. But see Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249, 259-60 (1972) (identifying judicial exceptions to the rule created "in the interests of justice").
195. Extension of Admiralty Jurisdiction Act, ch. 526, 62 Stat. 496 (1948)
196. (codified as amended at 46 U. S. C. § 30101 (2006)).
197. 46 U. S. C. § 30101.
198. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 532 (1995).
199. 409 U. S. at 262.
200. See Jerome B. Grubart, 513 U. S. at 543 n. 5.
201. 409 U. S. at 268.
202. 457 U. S. 668, 674-75 (1982);
203. See Sisson v. Ruby, 497 U. S. 358, 364 n. 2 (1990) (noting the unanimity of the Court in Foremost on this point).
204. 513 U. S. 527, 534-38 (1995). In contrast, the Court's treatment of the locality test emphasizes the rule-like nature of that inquiry.
205. I do not argue that the existing statutes are properly interpreted as described in the text. Thus, Justice Marshall's retort to Justice Scalia's Sisson concurrence-that "the demand for tidy rules can go too far, and when that demand entirely divorces the jurisdictional inquiry from the purposes that support the exercise of jurisdiction, it has gone too far", 497 U. S. 358, 364 n. 2 (1990)-may be correct as a matter of statutory interpretation. My only point is that one can have a rule and have abstention tend to the notion that cases come to federal court only as consistent with the purposes of the relevant jurisdiction.
206. See, e.g., Piper Aircraft Co. v. Reyno, 454 U. S. 235, 254-55 (1981).
207. Cf. Erin A. O'Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. CHI. L. REV. 1151, 1151 (2000) (arguing in favor of more rule-based choice-of-law approaches).