The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction

Abstract:     
This article develops a model of the federal courts as a kind of franchising arrangement - a chain of dispute resolution forums with a set of basic characteristics held in common across branches, regardless of the location in which any particular branch sits. It argues, in particular, that federal court practice - in sharp contrast to practice in scattered state courts - is characterized by a high measure of procedural homogeneity, a standardized culture marked by a strong ethic of professionalism, and a bench that exhibits generally high levels of competence in the stuff of judge-craft.

The article urges reorienting our thinking about federal question jurisdiction around the Franchise model and discourages continued reliance on the conventional view - that federal judges are more likely than their state court counterparts to provide evenhanded, uniform, expert adjudication of federal law - to justify the conferral of general federal question jurisdiction on the lower federal courts.

Number of Pages in PDF File: 66

Accepted Paper Series