Section 1367 - Another Party Heard From
28 Pages Posted: 7 Jul 2011
Date Written: 1992
It was appropriate, if not essential, for Congress to overturn the the Supreme Court's decision in Finley v. United States, to negate the untoward implications for pendent and ancillary jurisdiction that both commentators and lower courts found in the reasoning and language of the opinion. Congress did respond, through the enactment of 28 U.S.C. § 1367. Professors Freer and Arthur have been critical of the process that led to its enactment, as well as of the end product. Perhaps a larger number of interested and knowledgeable persons should have been consulted, and perhaps a better statute would have resulted. Perhaps members of Congress and their staffs should have more carefully scrutinized the bill that became § 1367; and if they had, perhaps they would have better appreciated all the subtleties of the bill, and altered the bill to change some of its effects. But all of that is water under the bridge, except for the lessons that might be learned. For the present, students of § 1367 can help attorneys, courts, and legislators by illuminating the dark corners, revealing how § 1367 resolves certain issues, arguing for or against those resolutions, identifying what questions § 1367 poses or leaves unanswered, and taking a position on how those questions ought to be resolved. Professors Freer, Arthur, Burbank, Mengler, and Rowe have contributed valuably to that cause. In this volume of the Journal, a few more of us get to contribute our thoughts. We are other parties heard from, like the additional voices that § 1367 sometimes allows into lawsuits.
JEL Classification: K00, K10, K40, K41
Suggested Citation: Suggested Citation