The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction

The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction

This article provides a critical analysis of the view, dominant among courts and scholars, that the lower federal courts’ jurisdiction to adjudicate cases involving questions of federal law can be justified on the ground that federal judges are more likely than their state court counterparts to provide evenhanded, uniform, expert adjudication of federal law. It demonstrates that the bias-uniformity-expertise model””despite its prominence in judicial and academic discussions of federal jurisdiction””is significantly flawed in at least two senses. First, there are important ways in which the shape of our jurisdictional landscape cannot be squared with this account of the purposes federal question jurisdiction is designed to serve. Indeed, key fragments of the rules governing the federal courts’ authority to adjudicate federal question cases have explicitly been premised on rejection of each component of the conventional model of federal question jurisdiction. Second, there is reason to doubt the accuracy of the empirical claims that lie at the core of the conventional wisdom. That is, there is cause to question whether (1) federal judges are in fact more likely than their state court counterparts to vindicate federal claims, (2) the lower federal courts meaningfully advance the cause of uniformity in the interpretation of federal law, and (3) federal judges have meaningful expertise in the myriad areas of federal law that come before them.

I endeavor to replace the conventional story about how the state and federal judiciaries differ from one another with an account that better captures the realities of contemporary legal practice. I do this by presenting a model of the federal courts as a kind of franchising arrangement””a chain of dispute resolution forums with a set of basic characteristics held in common across branches, regardless of the location in which any particular branch sits. I argue, in particular, that federal court practice””in sharp contrast to practice in scattered state courts””is characterized by a high measure of procedural homogeneity, a standardized culture marked by a strong ethic of professionalism, and a bench that exhibits generally high levels of competence in the stuff of judge-craft. I argue, finally, that taking heed of the franchise-like qualities of the federal judiciary reveals the inherently political character of questions of jurisdictional allocation. And I suggest, accordingly, that the federal courts have only a limited role to play in policing congressional judgments as to which cases ought to be adjudicated in which forum.



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