Monday, February 25, 2008

Prof. Pfander Posts Article on Protective Jurisdiction

Prof. James Pfander has recently posted an article entitled Protective Jurisdiction, Aggregate Litigation, and the Limits of Article III on SSRN. Here is the Abstract:

Although the Supreme Court has yet to define precisely how far Congress may go in conferring protective jurisdiction on the federal courts, recent decisions cast some doubt on the viability of this expansive conception of federal jurisdiction. At the same time, Congress has shown a renewed interest in the use of minimal diversity jurisdiction as a tool of jurisdictional expansion. Both in the Multi-party, Multiforum Trial Jurisdiction Act of 2002 and in the Class Action Fairness Act of 2005, Congress treated the existence of any minimal diversity of citizenship between opposing plaintiffs and defendants as a jurisdictional predicate for shifting complex, multi-party litigation into the federal court system. Most observers presume that the Court will uphold the constitutionality of these expansive uses of minimal diversity, based on such decisions as State Farm v. Tashire, 386 U.S. 523 (1967).

This Article identifies a tension between the Court's reluctance to embrace protective jurisdiction and its presumptive willingness to approve the use of jurisdiction on the basis of minimal diversity. While the two jurisdictional constructs differ in theory, they can produce quite similar results in practice - they shift multi-party claims to federal court for resolution in accordance with state law. Thus, the Article shows that many of the testing cases of protective jurisdiction would easily satisfy a broad conception of minimal diversity and would thus challenge the notion that Article III imposes some sort of limit on how far Congress can go in expanding federal jurisdiction. The Article explores ways of reducing the tension, suggesting that the Court might revive limits on the breadth of minimal diversity or re-think its apparent hostility to protective jurisdiction.

The full article can be downloaded at


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