Reverse Abstention

Abstract:     
State courts decide claims based on federal or sister-state law every day. Although the applicable constitutional provisions are different, there are significant similarities in the way the Supreme Court conceptualizes the constraints on how those claims must be treated. One project of this Article is to chart those similarities, providing a unified account of the Court’s approach to judicial federalism. The larger project, however, is not to describe the Court’s approach, but to replace it. The current emphasis on discrimination and interference imposes burdensome and unwarranted obligations on state courts. A more flexible approach to judicial federalism is needed, and this Article takes important steps in that direction by developing a new analytical framework focused on prejudice. Prejudice may result when a state court renders a decision on the merits that does not adequately respect the law being applied. Or it may result when the same court refuses to entertain a suit in circumstances where no alternative forum is available. Neither result should be countenanced. But when a state court declines to decide a claim, and does so in a way that produces no prejudice to the legal rights involved, the abstention should be tolerated — and perhaps even applauded.

Number of Pages in PDF File: 45

Accepted Paper Series