Author ORCID Identifier

0000-0003-3068-0070

Document Type

Article

Publication Date

2021

Keywords

Diversity jurisdiction, Federal courts, Subject matter jurisdiction, Bias, Interstate commerce

Abstract

Diversity jurisdiction survived concerted frontal assaults made from the mid- to late-twentieth century. It weathered criticism of academics and of some high-profile federal judges. Today, diversity jurisdiction represents a burgeoning percentage of the federal civil docket, and it is supported by an efficiency rationale that did not exist at the founding. Today, academics and judges seem relatively ambivalent toward, and some even accepting of, diversity jurisdiction. Today, we see efforts not to abolish diversity jurisdiction, but to rationalize the various threads of its doctrine.

These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of this branch of federal jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for this reason. But the bar’s embrace is more than a raw political fact. It likely manifests rational choices made in the interests of clients. At least, it should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.

First Page

1083

Publication Title

Southern California Law Review

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