Dispelling the Myths of Pendent and Ancillary Jurisdiction: The Ramifications of a Revised History
73 Pages Posted: 11 Aug 2021 Last revised: 5 Nov 2021
Date Written: 1989
This article delves into the history of what is now called supplemental jurisdiction. It reveals that the received canon is incorrect. First, the notion that a court could decide matters outside its jurisdiction, but ancillary to the case before it, can be traced to medieval or early modern England. The U.S. federal courts, starting in the eighteenth century, broadly applied this doctrine to nonfederal issues in federal cases. Second, the term "pendent jurisdiction" was coined in the mid-twentieth century; before then, those cases were simply considered a form of ancillary jurisdiction. Third, until the 1970's, ancillary jurisdiction was frequently applied to plaintiffs' claims in both diversity and federal question suits. Thus, the late-twentieth century cases on the subject are overly cramped in their interpretation of the doctrine. This article is a historical analysis and predates the supplemental jurisdiction statute, 28 U.S.C. sec. 1367. Nonetheless, it has importance today, as does all history. This article demonstrates that sec. 1367, based on the late-twentieth century cases, can be criticized for limiting the power of the federal courts.
Keywords: ancillary jurisdiction, pendent jurisdiction, supplemental jurisdiction, subject matter jurisdiction, history of federal jurisdiction, 28 USC sec. 1367, Osborn, Freeman v. Howe, Gibbs, Owen, Aldinger, Finley
JEL Classification: K10
Suggested Citation: Suggested Citation