Prof. Seinfeld Publishes Article on Federal Question Jurisdiction

The California Law Review has just published an Article by Professor Gil Seinfeld (Michigan) entitled The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 Cal. L. Rev. 95 (Feb. 2009). Here is an excerpt from the Introduction:

Since 1875, the federal district courts have been vested with what is known as “general federal question jurisdiction”--original jurisdiction predicated on the presence in a suit of a question of federal law. The conferral of such jurisdiction on the federal courts is typically justified on three grounds. First, state court judges are thought more likely than their federal counterparts to exhibit bias against claims sounding in federal law; second, federal courts are thought better able than state courts to supply a uniform interpretation of federal law; and third, federal judges are thought to have greater expertise than state court judges in the interpretation and application of federal law. By channeling federal question cases into the federal courts, the argument goes, we increase the likelihood of even-handed, uniform, expert adjudication of federal law. This “bias-uniformity-expertise” mantra lies at the core of judicial and scholarly discourse relating to federal question jurisdiction. It is incanted almost reflexively by courts when they craft doctrine governing the allocation of federal question cases between the state and federal judiciaries, and it is frequently the starting point for scholarly analysis of these doctrines.

Despite its prominence in judicial and academic discussions of federal jurisdiction, the bias-uniformity-expertise model has significant limitations. This is true in two senses. First, there are important ways in which the shape of our jurisdictional landscape cannot be squared with the standard account of the purposes federal question jurisdiction is designed to serve. It is not simply that pockets of the law of federal question jurisdiction are difficult to explain by reference to the narratives of bias, uniformity, or expertise (though that is surely the case); the dissonance is far sharper. Key fragments of the rules governing the federal courts' authority to decide questions of federal law have explicitly been premised on rejection of each component of the conventional model of federal question jurisdiction. Thus, the actual behavior of Congress and the courts in setting the terms of the federal judiciary's interface with federal law raises serious doubts as to the explanatory power of the conventional account. Second--and this, no doubt, explains some of the dissonance between the theory and practice of federal question jurisdiction--there is reason to doubt the accuracy of the empirical claims that lie at the core of the conventional wisdom. That is, there is cause to question whether federal judges are in fact more likely than their state court counterparts to vindicate federal claims, whether the lower federal courts meaningfully advance the interest in a uniform interpretation of federal law, and whether and when the claim of federal judicial expertise has genuine purchase.