An Empirical Assessment of Federal Question Jurisdiction


For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims and to preserve uniformity in federal law. Although one could fill a small library with books and articles endorsing this conception of federal question jurisdiction, one would be hard-pressed to find a single article testing these rationales empirically.

This Article seeks to be the first such piece of scholarship. Based on a study of thousands of state court cases across fifteen different states, it first concludes that neither the state hostility nor uniformity rationales are borne out by empirical evidence. Next, it explains that federal judges, while likely more experienced than state judges in interpreting federal law, have superior experience only in certain specific areas of law. The Article then identifies a second purpose that is not often discussed in the context of statutory federal question jurisdiction: the protection of the federal governments’ sovereignty interests. Like federal judicial experience, however, federal question jurisdiction only protects a spe-cific type of sovereignty interest—-the interest in controlling the meaning of sovereign law. After dismissing the suggestion that federal question jurisdiction is necessary to shoulder a large caseload, the Article then assesses the implications of the newly-adduced purposes of the jurisdictional grant by applying them to some common jurisdictional dilemmas.



Date of this Version

August 2006