State Power to Define Jurisdiction

Abstract:     
States should have much broader authority to decline jurisdiction over federal claims. The normative considerations supporting this doctrine of “reverse abstention” have been developed in previous work. But what of the Constitution? The traditional reading, reflected in existing precedent, asserts that the Supremacy Clause, Article III, and perhaps Article I operate together to create an inflexible obligation for state courts to hear federal claims. This reading is misguided. The Supremacy Clause contains no jurisdictional obligation of its own force, but only gives supreme effect to other validly enacted federal laws. And no other clause provides the authority to impose such an obligation on the states. Suggestions to the contrary are based on an overly cramped version of originalism that fails to account for the exigencies of constitutional compromise and ratification.

Number of Pages in PDF File: 53

Accepted Paper Series