You Can Lead a Horse to Water . . .: the Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress
23 Pages Posted: 26 May 2008
This article, a part of a symposium issue, addresses primarily the lack of textual and historical support for the Supreme Court's narrow construction of federal jurisdictional provisions, which cause it to deny the existence of jurisdiction. The article also discusses the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share share democratic theory and institutional legitimacy concerns that Professor Redish's paper, "Judge-Made Abstention and the Fashionable Art of Democracy Bashing," 40 Case W. Res. L. Rev. 1023 (1990), addresses. This article suggests that one can best understand these issues in the light of the congressional thought underlying the Title 28 jurisdictional authorizations.
Keywords: abstention, federal jurisdiction, separation of powers
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