The year was 1809, and Chief Justice John Marshall, explaining why
federal courts should be able to hear cases involving state law,
said that the Constitution "entertains apprehensions" that local
courts are biased in favor of local citizens.
Marshall's words were not the last on the subject. Earlier this
month, a U.S. House subcommittee rekindled the old debate over what
cases should be heard by federal judges. By a 9-6 vote, the House
Subcommittee on Courts, Civil Liberties and Administration moved to
eliminate a rule that allows federal courts to decide cases where
only state law applies.
The measure, sponsored by Rep. Benjamin L. Cardin, D-Md., would
sharply curtail a rule that last year permitted the federal courts
to hear more than a quarter of their caseload. Known by lawyers and
judges as diversity jurisdiction, the rule gives federal judges the
authority to decide any case where the parties are from different
states and the dispute amounts to more than $10,000.
If it became law, the immediate impact of the Cardin Amendment
would be to move to the state courts a substantial percentage of the
federal cases involving commercial disputes, routine accident cases
and product liability lawsuits.
The battle over diversity jurisdiction has the American Bar
Association squared off against the Judicial Conference, an
administrative arm of the federal judiciary headed by the chief
justice of the United States and composed of the chief judges of
each circuit and representatives from the district courts.
The bar has lobbied intensely to retain the rule, which gives
its membership more tactical options during litigation. On the
other hand, the Reagan administration and the Judicial Conference
have asked Congress to eliminate it.
Critics charge that the federal courts are overwhelmed with
routine commercial and accident suits, so the logical area to lighten
the load is by diminishing the role of federal judges in such
"Diversity jurisdiction ought to be eliminated completely
because the reason for it has disappeared," said Wilfred Feinberg,
the chief judge of the United States Court of Appeals for the 2nd
Circuit, with jurisdiction in New York, Connecticut and Vermont.
"The federal courts cannot stand the luxury of diversity. There are
larger national issues which are getting crowded out of the courts."
The Administrative Office of the U.S. Courts reports that 67,071
cases filed in the federal courts last year were based on diversity
jurisdiction out of a total of 238,982 suits.
"The elimination of diversity would certainly help federal
judges, who are struggling mightily with an average annual caseload
of about 400 cases per judge," said Maurice Rosenberg, a professor
of civil procedure at the Columbia Law School.
Lessening the federal docket, however, does not automatically
translate into speedier justice. Richard D. Raven, the
president-elect of the American Bar Association, said that it
already takes five years to bring a case to a state jury in Los
Angeles and moving more cases to such courts would only make matters
"We view it as a federalism question," said Stephen J. Markman,
an assistant attorney general. "These are issues of state law and
who better to decide them than the state courts? …