Complete Diversity and the Closing of the Federal Courts

Article excerpt

Article III of the Constitution was designed to establish a federal judiciary, in the words of Federalist No. 81, "competent to the determination of matters of national jurisdiction." (1) The Framers were unwilling to rely on the state courts for this purpose, as the Antifederalists preferred, largely because "the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes." (2) Indeed, the Framers were so apprehensive of state court bias, or the perception of bias, in favor of local interests that they considered a neutral federal tribunal necessary in some cases for the peace and harmony of the union. (3) They took care, accordingly, to extend federal jurisdiction to "cases in which the State tribunals cannot be supposed to be impartial." (4) In particular, Article III, Section 2 provides that "[t]he judicial Power shall extend to," among other things, "Controversies between two or more States;--between a State and Citizens of another State; between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." (5)

Thus, although the Framers generally left undisturbed the exclusive jurisdiction of state courts over cases arising under state law, they established concurrent jurisdiction in federal courts over cases in which the impartiality of state courts would be tested most directly: those cases in which the interests of the state itself, or of its citizens, were adverse to the interests of other states, foreign countries, or their citizens. Of particular concern to the Framers in establishing federal jurisdiction over disputes "between citizens of different states" was the crippling effect that judicial bias favoring in-state interests, whether real or perceived, would have on interstate commerce. By ensuring that a neutral federal court--the "tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens" (6)--was available to adjudicate disputes between parties of diverse state citizenship, the Framers were animated by much the same spirit that resulted in the various substantive constitutional protections against state interference with interstate and foreign commerce. (7) As Justice Joseph Story explained in his classic Commentaries on the Constitution, the grant of federal jurisdiction over interstate disputes was intended "to increase the confidence and credit between the commercial and agricultural states," for "[n]o man can be insensible to the value, in promoting credit, of the belief of there being a prompt, efficient, and impartial administration of justice in enforcing contracts." (8)

The value of diversity jurisdiction in promoting interstate commerce, however, depends largely on the equal availability of the federal forum to both sides of an interstate dispute. It follows, as Justice Story explained for the Supreme Court in the landmark case of Martin v. Hunter's Lessee, (9) that diversity jurisdiction was not intended by the Framers "to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, before the same forum." (10) The federal courts have nevertheless narrowed federal jurisdiction over cases involving citizens of different States by imposing a number of doctrines-including, most notably the requirement of complete diversity between all plaintiffs and all defendants--that restrict access to the federal courts, especially by defendants. After discussing these judicially imposed limitations on the diversity jurisdiction, we demonstrate in this Article: that the requirement of complete diversity is inconsistent with the history and purposes of the diversity clause of Article III; that it is not required by, and may well contravene, that provision of the Constitution; and that it rests on a construction of the diversity statute that the Supreme Court has acknowledged was erroneous. …