State Power to Define Jurisdiction

53 Pages Posted: 31 Aug 2012 Last revised: 15 Oct 2014

Samuel P. Jordan

Saint Louis University - School of Law

Christopher Kennedy Bader

Saint Louis University School of Law

Date Written: August 28, 2012

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.

Suggested Citation

Jordan, Samuel P. and Bader, Christopher Kennedy, State Power to Define Jurisdiction (August 28, 2012). 47 Ga. L. Rev. 1161 (2013). Available at SSRN: https://ssrn.com/abstract=2137870 or http://dx.doi.org/10.2139/ssrn.2137870

Samuel P. Jordan (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States
3149772795 (Phone)

Christopher Kennedy Bader

Saint Louis University School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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