Under the Law of Federal Jurisdiction: Allocating Cases between Federal and State Courts

Abstract

One of the primary functions of the law of federal jurisdiction is to allocate cases between state and federal courts, and by common consensus that body of doctrine is a mess. The doctrine is overly complex, often indeterminate, rests on the mutable concept of parity, and frequently fails to respect the state or federal in having a case adjudicated in state or federal court. The root of the problem, this article argues, is the problem of either-or: the almost universal understanding that a case should be litigated in a state court or a federal court, but not both. The suggestion here is that the law should adopt a different - or - approach, meaning that when appropriate cases should be litigated in both the state and federal court systems. Although this suggestion sounds novel, one of the central points of the article is that multi-jurisdictional solutions are familiar and pervasive, examples being collateral review and certification procedures. The article identifies a small list of state and federal interests that achieve broad consensus, then explains how these interests can be used to allocate cases to state and federal courts, utilizing multi-jurisdictional solutions when necessary to accommodate competing interests. The article demonstrates how a set of deep principles operating under the surface doctrine already allocates most cases in this fashion, and suggests reform when such is not the case. The article concludes by explaining why the multi-jurisdictional approach is appropriate, in the face of arguments about resource expenditures.