The Political Reality of Diversity Jurisdiction

32 Pages Posted: 1 Sep 2020 Last revised: 10 Sep 2020

Date Written: August 17, 2020

Abstract

Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts.

But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine.

These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.

Keywords: diversity of citizenship, federal jurisdiction, federal courts, civil procedure, complete diversity, diversity, Erie

JEL Classification: K-10, K-40, K-41

Suggested Citation

Freer, Richard D., The Political Reality of Diversity Jurisdiction (August 17, 2020). 94 S. Cal. L. Rev. ___ (2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3675156 or http://dx.doi.org/10.2139/ssrn.3675156

Richard D. Freer (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
(404) 727-6838 (Phone)
(404) 727-6820 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
74
Abstract Views
356
rank
369,048
PlumX Metrics