CALIFORNIA LAW REVIEW
Supreme Court has been notably reluctant to go along. When JusticeJackson first broached the subject in his plurality opinion in the
six Justices were quick to disavow his approach.
In 1957, in perhapsthe leading judicial consideration of the subject, Justice Frankfurterrejected two leading theories of protective jurisdiction.
Since then, theCourt has had more than one occasion to embrace protective jurisdictionand has declined to do so.
Although the Court’s apparent rejection of protective jurisdictionsuggests a commitment to the classic view of Article III as imposing limitson federal judicial power, the Court has been notably unpredictable inenforcing similar limits in at least two other contexts. To begin, the Courthas essentially avoided the question of what limits Article III places on thescope of diversity jurisdiction. As a matter of statutory interpretation, theCourt has preserved the traditional rule of complete diversity for manyclaims brought in federal court.
State Farm Fire & Cas. Co. v.Tashire
, the Court upheld Congress’s power to relax the complete diversityrule in the interpleader context, treating the issue as too obvious to warrant
The Political Safeguards of Federalism: The Roleof the States in the Composition and Selection of the National Government
Colum. L. Rev.
Jesse J. Choper, Judicial Review and the National Political Process: AFunctional Reconsideration of the Role of the Supreme Court
(1980).3. Protective jurisdiction provided an early predicate for some complex litigation proposals. Foran account, see Linda S Mullenix,
Complex Litigation Reform and Article III Jurisdiction
169, 178-91 (1990) (describing ABA task force on mass torts and ALI Project on ComplexLitigation as relying upon theories of protective jurisdiction to support jurisdictional expansion). Somehave tried to solve the jurisdictional puzzles implicit in the Alien Tort Statute from a protective jurisdiction perspective.
The Federal Courts’ Protective Jurisdiction Over TortsCommitted in Violation of the Law of Nations
Conn. L. Rev
. 467 (1986).4.
National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 586-88 (1949).5.
, 337 U.S. at 617-18 (Rutledge, J., concurring);
at 647, 652 (Frankfurter, J.,dissenting);
at 628-29 (Vinson, CJ., dissenting). For a critique of, and alternative to, JusticeJackson’s suggested approach to the
problem, see James E. Pfander,
Problem: Article III and Constitutional Change
Notre Dame L. Rev.
Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 460 (1957) (Frankfurter, J.,dissenting).7. In
Verlinden B.V. v. Central Bank of Nigeria
, 461 U.S. 480 (1983), the Court found that theclaim in question arose under the federal law of foreign sovereign immunity and saw no reason to reachthe issue of protective jurisdiction. Still later, in
Mesa v. California
, the Court pointedly declined thefederal government’s invitation to adopt protective jurisdiction as the basis for district courts toexercise removal jurisdiction over state law claims brought against federal officials.
Brief forPetitioners at 43, Mesa v. California, 489 U.S. 121 (1989) (No. 87-1206) (describing the federal officerremoval statute as meant to protect federal officers from hostile state courts by providing for a trial onthe merits of state-law questions free from local interests or prejudice). Instead, the Court chose to limitofficer removal jurisdiction to cases in which the federal officers tender substantial defenses groundedin federal law.8.
, Exxon Mobil Co. v. Allapattah Servs. Inc., 545 U.S. 546 (2005) (relaxing theamount-in-controversy rule but preserving the complete diversity rule); Owen Equipment & Erect. Co.v. Kroger, 437 U.S. 365 (1978) (expanding the scope of ancillary jurisdiction but preserving thecomplete diversity rule).