JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS
Cases Arising Under the Constitution, Laws, and Treaties of the United States

Cases arising under the Constitution are cases that require an interpretation of the Constitution for their correct decision.800 They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks for judicial relief. The clause furnishes the principal textual basis for the implied power of judicial review of the constitutionality of legislation and other official acts.

Development of Federal Question Jurisdiction.

Almost from the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws;801 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.802 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.803 Although there were a few jurisdictional provisions enacted in the early years,804 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases,805 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.806 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.807

When a Case Arises Under.

The 1875 statute and its pres- ent form both speak of civil suits “arising under the Constitution, laws, or treaties of the United States,”808 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief Justice Marshall’s construction of the constitutional language to interpret the statutory language.809 The result was probably to accept more jurisdiction than Congress had intended to convey.810 Later cases take a somewhat more restrictive course.811

Determination whether there is federal question jurisdiction is made on the basis of the plaintiff ’s pleadings and not upon the response or the facts as they may develop.812 Plaintiffs seeking access to federal courts on this ground must set out a federal claim which is “well-pleaded” and the claim must be real and substantial and may not be without color of merit.813 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the action.814 But what exactly must be pleaded to establish a federal question is a matter of considerable uncertainty in many cases. It is no longer the rule that, when federal law is an ingredient of the claim, there is a federal question.815

Many suits will present federal questions because a federal law creates the action.816 Perhaps Justice Cardozo presented the most understandable line of definition, while cautioning that “[t]o define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards [approaching futility].”817 How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff ’s cause of action. . . . The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . . . A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. . . .818

It was long evident, though the courts were not very specific about it, that the federal question jurisdictional statute is and always was narrower than the constitutional “arising under” jurisdictional standard.819 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts sometimes construed the statute equivalently, with doubtful results.820

Removal From State Court to Federal Court.

A limited right to “remove” certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,821 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.822 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.823 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in “federal question” cases.824 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.825

The constitutionality of removal statutes was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,826 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.827 In Tennessee v. Davis,828 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the national government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the Necessary and Proper Clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer, here the judiciary.829 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws “is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. . . .”

“The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from state courts before trial, those doubts soon disappeared.”830 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.831 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.832

Corporations Chartered by Congress.

In Osborn v. Bank of the United States,833 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress to the federal courts of jurisdiction in all cases to which the bank was a party.834 Consequently, upon enactment of the 1875 law, the door was open to other federally chartered corporations to seek relief in federal courts. This opportunity was made actual when the Court in the Pacific R.R. Removal Cases835 held that tort actions against railroads with federal charters could be removed to federal courts solely on the basis of federal incorporation. In a series of acts, Congress deprived national banks of the right to sue in federal court solely on the basis of federal incorporation in 1882,836 deprived railroads holding federal charters of this right in 1915,837 and finally in 1925 removed from federal jurisdiction all suits brought by federally chartered corporations on the sole basis of such incorporation, except where the United States holds at least half of the stock.838

Federal Questions Resulting from Special Jurisdictional Grants.

In the Labor-Management Relations Act of 1947, Con- gress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.839 Although it is likely that Congress meant no more than that labor unions could be suable in law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to empower federal courts to apply substantive federal law, divined and fashioned from the policy of national labor laws, in such suits.840 State courts are not disabled from hearing actions brought under the section,841 but they must apply federal law.842 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts may be increased by unexpected interpretations of such grants.843

Civil Rights Act Jurisdiction.

Perhaps the most important of the special federal question jurisdictional statutes is that conferring jurisdiction on federal district courts to hear suits challenging the deprivation under color of state law or custom of any right, privilege, or immunity secured by the Constitution or by any act of Congress providing for equal rights.844 Because it contains no jurisdictional amount provision845 (while the general federal question statute at one time did)846 and because the Court has held inapplicable the judicially created requirement that a litigant exhaust his state remedies before bringing federal action,847 the statute has been heavily used, resulting in a formidable caseload, by plaintiffs attacking racial discrimination, malapportionment and suffrage restrictions, illegal and unconstitutional police practices, state restrictions on access to welfare and other public assistance, and a variety of other state and local governmental practices.848 Congress has encouraged use of the two statutes by providing for attorneys’ fees under § 1983,849 and by enacting related and specialized complementary statutes.850 The Court in recent years has generally interpreted § 1983 and its jurisdictional statute broadly, but it has also sought to restrict the kinds of claims that may be brought in federal courts.851 Note that § 1983 and § 1343(3) need not always go together, as § 1983 actions may be brought in state courts.852

Pendent Jurisdiction.

Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,853 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non-federal questions of fact and law may be involved therein.854 “Pendent jurisdiction,” as this form is commonly called, exists whenever the state and federal claims “derive from a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.”855 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional claims if they may avoid it and should rest their conclusions upon principles of state law where possible.856 But the federal court has discretion whether to hear the pendent state claims in the proper case. Thus, the trial court should look to “considerations of judicial economy, convenience and fairness to litigants” in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated, the court would be justified in dismissing the state claim.857

A variant of pendent jurisdiction, sometimes called “ancillary jurisdiction,” is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it might properly not have had jurisdiction of one of the issues if it had been independently presented.858 Thus, in an action under a federal statute, a compulsory counterclaim not involving a federal question is properly before the court and should be decided.859 The concept has been applied to a claim otherwise cognizable only in admiralty when joined with a related claim on the law side of the federal court, and in this way to give an injured seaman a right to jury trial on all of his claims when ordinarily the claim cognizable only in admiralty would be tried without a jury.860 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.861

Still another variant is the doctrine of “pendent parties,” under which a federal court could take jurisdiction of a state claim against one party if it were related closely enough to a federal claim against another party, even though there was no independent jurisdictional base for the state claim.862 Although the Supreme Court at first tentatively found some merit in the idea,863 in Finley v. United States,864 by a 5-to-4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs of pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia wrote for the Court, was within the constitutional grant of judicial power, but to be operable it must be affirmatively granted by congressional enactment.865 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but also codifying pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.”866

Thus, these interrelated doctrinal standards now seem well-grounded.

Protective Jurisdiction.

A conceptually difficult doctrine, which approaches the verge of a serious constitutional gap, is the concept of protective jurisdiction. Under this doctrine, it is argued that in instances in which Congress has legislative jurisdiction, it can confer federal jurisdiction, with the jurisdictional statute itself being the “law of the United States” within the meaning of Article III, even though Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial cases,867 the doctrine has neither been rejected nor accepted by the Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria,868 the Court reviewed a congressional grant of jurisdiction to federal courts to hear suits by an alien against a foreign state, jurisdiction not within the “arising under” provision of article III. Federal substantive law was not applicable, that resting either on state or international law. Refusing to consider protective jurisdiction, the Court found that the statute regulated foreign commerce by promulgating rules governing sovereign immunity from suit and was a law requiring interpretation as a federal-question matter. That the doctrine does raise constitutional doubts is perhaps grounds enough to avoid reaching it.869

Supreme Court Review of State Court Decisions.

In addi- tion to the constitutional issues presented by § 25 of the Judiciary Act of 1789 and subsequent enactments,870 questions have continued to arise concerning review of state court judgments which go directly to the nature and extent of the Supreme Court’s appellate jurisdiction. Because of the sensitivity of federal-state relations and the delicate nature of the matters presented in litigation touching upon them, jurisdiction to review decisions of a state court is dependent in its exercise not only upon ascertainment of the existence of a federal question but upon a showing of exhaustion of state remedies and of the finality of the state judgment. Because the application of these standards to concrete facts is neither mechanical nor nondiscretionary, the Justices have often been divided over whether these requisites to the exercise of jurisdiction have been met in specific cases submitted for review by the Court.

The Court is empowered to review the judgments of “the highest court of a State in which a decision could be had.”871 This will ordinarily be the state’s court of last resort, but it could well be an intermediate appellate court or even a trial court if its judgment is final under state law and cannot be reviewed by any state appellate court.872 The review is of a final judgment below. “It must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”T873 The object of this rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal assumption of a role in a controversy until the state court efforts are finally resolved.874 For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal of a state court judgment must have raised that issue with sufficient precision to have enabled the state court to have considered it and she must have raised the issue at the appropriate time below.875

When the judgment of a state court rests on an adequate, independent determination of state law, the Court will not review the resolution of the federal questions decided, even though the resolution may be in error.876 “The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and Federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion.”877 The Court is faced with two interrelated decisions: whether the state court judgment is based upon a nonfederal ground and whether the nonfederal ground is adequate to support the state court judgment. It is, of course, the responsibility of the Court to determine for itself the answer to both questions.878

The first question, whether there is a nonfederal ground, may be raised by several factual situations. A state court may have based its decision on two grounds, one federal, one nonfederal.879 It may have based its decision solely on a nonfederal ground but the federal ground may have been clearly raised.880 Both federal and nonfederal grounds may have been raised but the state court judgment is ambiguous or is without written opinion stating the ground relied on.881 Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent non-federal ground.882 In any event, it is essential for purposes of review by the Supreme Court that it appear from the record that a federal question was presented, that the disposition of that question was necessary to the determination of the case, that the federal question was actually decided or that the judgment could not have been rendered without deciding it.883

Several factors affect the answer to the second question, whether the nonfederal ground is adequate. In order to preclude Supreme Court review, the nonfederal ground must be broad enough, without reference to the federal question, to sustain the state court judgment;884 it must be independent of the federal question;885 and it must be tenable.886 Rejection of a litigant’s federal claim by the state court on state procedural grounds, such as failure to tender the issue at the appropriate time, will ordinarily preclude Supreme Court review as an adequate independent state ground,887 so long as the local procedure does not discriminate against the raising of federal claims and has not been used to stifle a federal claim or to evade vindication of federal rights.888

Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held the Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.889 Many years later, the Supreme Court held that consuls could be sued in federal court,890 and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where Supreme Court has been invested with original jurisdiction.891 Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in state courts against consular officials. The leading case is Ohio ex rel. Popovici v. Agler,892 in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony.

A number of incidental questions arise in connection with the phrase “affecting ambassadors and consuls.” Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States v. Ortega,893 the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit “affecting” the minister but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an ambassador or consul.

The Court has refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and has laid down the rule that it has the right to accept a certificate from the Department of State on such a question.894 A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.895 However, in matters of especial delicacy, such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature in which a state is a party, Congress until recently made the original jurisdiction of the Supreme Court exclusive of that of other courts.896 By its compliance with the congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose.

Cases of Admiralty and Maritime Jurisdiction

The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the states established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.897 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the states, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases.898

The Constitution uses the terms “admiralty and maritime jurisdiction” without defining them. Though closely related, the words are not synonyms. In England the word “maritime” referred to the cases arising upon the high seas, whereas “admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.899 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance “of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it . . . .”900 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe.901

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,902 it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that “whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.”903 The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York and Providence.

Power of Congress To Modify Maritime Law.

The Consti- tution does not identify the source of the substantive law to be applied in the federal courts in cases of admiralty and maritime jurisdiction. Nevertheless, the grant of power to the federal courts in Article III necessarily implies the existence of a substantive maritime law which, if they are required to do so, the federal courts can fashion for themselves.904 But what of the power of Congress in this area? In The Lottawanna,905 Justice Bradley undertook a definitive exposition of the subject. No doubt, the opinion of the Court notes, there exists “a great mass of maritime law which is the same in all commercial countries,” still “the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country.”906 “The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend ‘to all cases of admiralty and maritime jurisdiction.’ But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it . . . .”

“One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.”907

“It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.”908 That Congress’s power to enact substantive maritime law was conferred by the Commerce Clause was assumed in numerous opinions,909 but later opinions by Justice Bradley firmly established that the source of power was the admiralty grant itself, as supplemented by the second prong of the Necessary and Proper Clause.910 Thus, “[a]s the Constitution extends the judicial power of the United States to ‘all cases of admiralty and maritime jurisdiction,’ and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature and not in the state legislatures.”911 Rejecting an attack on a maritime statute as an infringement of intrastate commerce, Justice Bradley wrote: “It is unnecessary to invoke the power given the Congress to regulate commerce in order to find authority to pass the law in question. The act was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but, in maritime matters, it extends to all matters and places to which the maritime law extends.”912

The law administered by federal courts in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by congressional amendment, the common law of torts and contracts as modified to the extent constitutionally possible by state legislation, and international prize law. This body of law is at all times subject to modification by the paramount authority of Congress acting in pursuance of its powers under the Admiralty and Maritime Clause and the Necessary and Proper Clause and, no doubt, the Commerce Clause, now that the Court’s interpretation of that clause has become so expansive. Of this power there has been uniform agreement among the Justices of the Court.913

Admiralty and Maritime Cases.

Admiralty and maritime ju- risdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act, while in the second category subject matter is the primary determinative factor.914 Specifically, contract cases include suits by seamen for wages,915 cases arising out of marine insurance policies,916 actions for towage917 or pilotage918 charges, actions on bottomry or respondentia bonds,919 actions for repairs on a vessel already used in navigation,920 contracts of affreightment,921 compensation for temporary wharfage,922 agreements of consortship between the masters of two vessels engaged in wrecking,923 and surveys of damaged vessels.924 That is, admiralty jurisdiction “extends to all contracts, claims and services essentially maritime.”925 But the courts have never enunciated an unambiguous test which would enable one to determine in advance whether or not a given case is maritime.926 “The boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract. . . .”927

Maritime torts include injuries to persons,928 damages to property arising out of collisions or other negligent acts,929 and violent dispossession of property.930 The Court has expressed a willingness to “recogniz[e] products liability, including strict liability, as part of the general maritime law.”931 Unlike contract cases, maritime tort jurisdiction historically depended exclusively upon the commission of the wrongful act upon navigable waters, regardless of any connection or lack of connection with shipping or commerce.932 The Court has now held, however, that in addition to the requisite situs a significant relationship to traditional maritime activity must exist in order for the admiralty jurisdiction of the federal courts to be invoked.933 Both the Court and Congress have created exceptions to the situs test for maritime tort jurisdiction to extend landward the occasions for certain connected persons or events to come within admiralty, not without a little controversy.934

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.935 Also, in contrast to other phases of admiralty jurisdiction, prize law as applied by the British courts continued to provide the basis of American law so far as practicable,936 and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction includes the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,937 infraction of revenue laws,938 and the like.939

Admiralty Proceedings.

Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant.940 Suits in admiralty traditionally took the form of a proceeding in rem against the vessel, and, with exceptions to be noted, such proceedings in rem are confined exclusively to federal admiralty courts, because the grant of exclusive jurisdiction to the federal courts by the Judiciary Act of 1789 has been interpreted as referring to the traditional admiralty action, the in rem action, which was unknown to the common law.941 The savings clause in that Act under which a state court may entertain actions by suitors seeking a common-law remedy preserves to the state tribunals the right to hear actions at law where a common-law remedy or a new remedy analogous to a common-law remedy exists.942 Concurrent jurisdiction thus exists for the adjudication of in personam maritime causes of action against the owner of the vessel, and a plaintiff may ordinarily choose whether to bring his action in a state court or a federal court.

Forfeiture to the crown for violation of the laws of the sovereign was in English law an exception to the rule that admiralty has exclusive jurisdiction over in rem maritime actions and was thus considered a common-law remedy. Although the Supreme Court sometimes has used language that would confine all proceedings in rem to admiralty courts,943 such actions in state courts have been sustained in cases of forfeiture arising out of violations of state law.944

Perhaps the most significant admiralty court difference in procedure from civil courts is the absence of a jury trial in admiralty actions, with the admiralty judge trying issues of fact as well as of law.

945 Indeed, the absence of a jury in admiralty proceedings appears to have been one of the principal reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts, since they provided a forum where the English authorities could enforce the Navigation Laws without “the obstinate resistance of American juries.”946

Territorial Extent of Admiralty and Maritime Jurisdiction.

Although he was a vigorous exponent of the expansion of admiralty jurisdiction, Justice Story for the Court in The Steamboat Thomas Jefferson947 adopted a restrictive English rule confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended.948 The demands of commerce on western waters led Congress to enact a statute extending admiralty jurisdiction over the Great Lakes and connecting waters,949 and in The Genes-see Chief v. Fitzhugh950 Chief Justice Taney overruled The Thomas Jefferson and dropped the tidal ebb and flow requirement. This ruling laid the basis for subsequent judicial extension of jurisdiction over all waters, salt or fresh, tidal or not, which are navigable in fact.951 Some of the older cases contain language limiting jurisdiction to navigable waters which form some link in an interstate or international waterway or some link in commerce,952 but these date from the time when it was thought the commerce power furnished the support for congressional legislation in this field.

Admiralty and Federalism.

Extension of admiralty and mari- time jurisdiction to navigable waters within a state does not, however, of its own force include general or political powers of government. Thus, in the absence of legislation by Congress, the states through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore.953

Determination of the boundaries of admiralty jurisdiction is a judicial function, and “no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits.”954 But, as with other jurisdictions of the federal courts, admiralty jurisdiction can only be exercised under acts of Congress vesting it in federal courts.955

The boundaries of federal and state competence, both legislative and judicial, in this area remain imprecise, and federal judicial determinations have notably failed to supply definiteness. During the last century, the Supreme Court generally permitted two overlapping systems of law to coexist in an uneasy relationship. The federal courts in admiralty applied the general maritime law,956 supplemented in some instances by state law which created and defined certain causes of action.957 Because the Judiciary Act of 1789 saved to suitors common-law remedies, persons suing in state courts or in federal courts in diversity of citizenship actions could look to common-law and statutory doctrines for relief in maritime-related cases in which the actions were noticeable.958 In Southern Pacific Co. v. Jensen,959 a sharply divided Court held that New York could not constitutionally apply its workmen’s compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned “that the general maritime law, as accepted by the federal courts, constituted part of our national law, applicable to matters within the admiralty and maritime jurisdiction.”960 Recognizing that “it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation,” still it was certain that “no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations.”961 The “savings to suitors” clause was unavailing because the workmen’s compensation statute created a remedy “of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction.”962

Congress required three opportunities to legislate to meet the problem created by the decision, the lack of remedy for maritime workers to recover for injuries resulting from the negligence of their employers. First, Congress enacted a statute saving to claimants their rights and remedies under state workmen’s compensation laws.963 The Court invalidated it as an unconstitutional delegation of legislative power to the states. “The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations.”964 Second, Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries.965

The Court found this effort unconstitutional as well, because “the manifest purpose [of the statute] was to permit any State to alter the maritime law and thereby introduce conflicting requirements.”966 Finally, in 1927, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, which provided accident compensation for injuries, including those resulting in death, sustained on navigable waters by employees, other than members of the crew, whenever “recovery . . . may not validly be provided by State law.”967

With certain exceptions,968 the federal-state conflict since Jensen has taken place with regard to three areas: (1) the interpretation of federal and state bases of relief for injuries and death as affected by the Longshoremen’s and Harbor Workers’ Compensation Act; (2) the interpretation of federal and state bases of relief for personal injuries by maritime workers as affected by the Jones Act; and (3) the application of state law to permit recovery in maritime wrongful death cases in which until recently there was no federal maritime right to recover.969

(1) The principal difficulty here was that after Jensen the Supreme Court did not maintain the line between permissible and impermissible state-authorized recovery at the water’s edge, but created a “maritime but local” exception, by which some injuries incurred in or on navigable waters could be compensated under state workmen’s compensation laws or state negligence laws.970 “The application of the State Workmen’s Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law ‘would work no material prejudice to the essential features of the general maritime law.’ ”971 Because Congress provided in the Longshoremen’s and Harbor Workers’ Compensation Act for recovery under the Act “if recovery . . . may not validly be provided by State law,”972 it was held that the “maritime but local” exception had been statutorily perpetuated,973 thus creating the danger for injured workers or their survivors that they might choose to seek relief by the wrong avenue to their prejudice. This danger was subsequently removed by the Court when it recognized that there was a “twilight zone,” a “shadowy area,” in which recovery under either the federal law or a state law could be justified, and held that in such a “twilight zone” the injured party should be enabled to recover under either.974 Then, in Calbeck v. Travelers Ins. Co.,975 the Court virtually read out of the Act its inapplicability when compensation would be afforded by state law and held that Congress’s intent in enacting the statute was to extend coverage to all workers who sustain injuries while on navigable waters of the United States whether or not a particular injury was also within the constitutional reach of a state workmen’s compensation law or other law. By the 1972 amendments to the LHWCA, Congress extended the law shoreward by refining the tests of “employee” and “navigable waters,” so as to reach piers, wharfs, and the like in certain circumstances.976

(2) The passage of the Jones Act977 gave seamen a statutory right of recovery for negligently inflicted injuries on which they could sue in state or federal courts. Because injured parties could obtain a jury trial in Jones Act suits, there was little attempted recourse under the savings clause978 to state law claims and thus no need to explore the line between applicable and inapplicable state law. But in the 1940s personal injury actions based on unseaworthiness979 were given new life by Court decisions for seamen;980 and the right was soon extended to longshoremen who were injured while on board ship or while working on the dock if the injury could be attributed either to the ship’s gear or its cargo.981 While these actions could have been brought in state court, federal law supplanted state law even with regard to injuries sustained in state territorial waters.982 The 1972 LHWCA amendments, however, eliminated unseaworthiness recoveries by persons covered by the Act and substituted a recovery under the LHWCA itself for injuries caused by negligence.983

(3) In The Harrisburg,984 the Court held that maritime law did not afford an action for wrongful death, a position to which the Court adhered until 1970.985 The Jones Act,986 the Death on the High Seas Act,987 and the Longshoremen’s and Harbor Workers’ Compensation Act988 created causes of action for wrongful death, but for cases not falling within one of these laws the federal courts looked to state wrongful death and survival statutes.989 Thus, in The Tungus v. Skovgaard,990 the Court held that a state wrongful death statute encompassed claims both for negligence and unseaworthiness in the instance of a land-based worker killed when on board ship in navigable water; the Court divided five-to-four, however, in holding that the standards of the duties to furnish a seaworthy vessel and to use due care were created by the state law as well and not furnished by general maritime concepts.991 And, in Hess v. United States,992 a suit under the Federal Tort Claims Act for recovery for a death by drowning in a navigable Oregon river of an employee of a contractor engaged in repairing the federally owned Bonneville Dam, a divided Court held that liability was to be measured by the standard of care expressed in state law, notwithstanding that the standard was higher than that required by maritime law. One area existed, however, in which beneficiaries of a deceased seaman were denied recovery.

The Jones Act provided a remedy for wrongful death resulting from negligence, but not for one caused by unseaworthiness alone; in Gillespie v. United States Steel Corp.,993 the Court held that the survivors of a seaman drowned while working on a ship docked in an Ohio port could not recover under the state wrongful death statute even though the act recognized unseaworthiness as a basis for recovery, the Jones Act having superseded state laws.

Thus did matters stand until 1970, when the Court, in a unanimous opinion in Moragne v. States Marine Lines,994 overruled its earlier cases and held that a right of recovery for wrongful death is sanctioned by general maritime law and that no statute is needed to bring the right into being. The Court was careful to note that the cause of action created in Moragne would not, like the state wrongful death statutes in Gillespie, be held precluded by the Jones Act, so that the survivor of a seaman killed in navigable waters within a state would have a cause of action for negligence under the Jones Act or for unseaworthiness under the general maritime law.

995

Cases to Which the United States Is a Party
Right of the United States to Sue.

In the first edition of his Treatise, Justice Story noted that while “an express power is no where given in the constitution,” the right of the United States to sue in its own courts “is clearly implied in that part respecting the judicial power. . . . Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing rights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.”996 As early as 1818, the Supreme Court ruled that the United States could sue in its own name in all cases of contract without congressional authorization of such suits.997 Later, this rule was extended to other types of actions. In the absence of statutory provisions to the contrary, such suits are initiated by the Attorney General in the name of the United States.998

By the Judiciary Act of 1789, and subsequent amendments to it, Congress has vested in the federal district courts jurisdiction to hear all suits of a civil nature at law or in equity brought by the United States as party plaintiff.999 As in other judicial proceedings, the United States, like any party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.1000 Under the long-settled principle that the courts have the power to abate public nuisances at the suit of the government, the provision in § 208(2) of the Labor Management Relations Act of 1949, authorizing federal courts to enjoin strikes that imperil national health or safety was upheld on the grounds that the statute entrusts the courts with the determination of a “case or controversy” on which the judicial power can operate and does not impose any legislative, executive, or non-judicial function. Moreover, the fact that the rights sought to be protected were those of the public in unimpeded production in industries vital to public health, as distinguished from the private rights of labor and management, was held not to alter the adversary (“case or controversy”) nature of the litigation instituted by the United States as the guardian of the aforementioned rights.1001 Also, by reason of the highest public interest in the fulfillment of all constitutional guarantees, “including those that bear . . . directly on private rights, . . . it [is] perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.”1002

Suits Against States.

Controversies to which the United States is a party include suits brought against states as party defendants. The first such suit occurred in United States v. North Carolina,1003 which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the state, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court’s original jurisdiction did not extend to cases to which the United States is a party.1004 Stressing the inclusion within the judicial power of cases to which the United States and a state are parties, the elder Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States “was given by Texas when admitted to the Union upon an equal footing in all respects with the other States.”1005

Suits brought by the United States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the state by the United States in breach of its trust obligations to the Indian.1006 In United States v. West Virginia,1007 the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries with the states.1008 Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.1009 Like suits were decided against Louisiana and Texas in 1950.1010

Immunity of the United States From Suit.

Pursuant to the general rule that a sovereign cannot be sued in its own courts, the judicial power does not extend to suits against the United States unless Congress by statute consents to such suits. This rule first emanated in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”1011 In Cohens v. Virginia,1012 also in dictum, Chief Justice Marshall asserted, “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke,1013 where Chief Justice Marshall stated that, as the United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.1014 Indeed, it was not until United States v. Lee1015 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Because suits against the United States can be maintained only by congressional consent, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.1016 As only Congress may waive the immunity of the United States from liability, officers of the United States are powerless either to waive such immunity or to confer jurisdiction on a federal court.1017 Even when authorized, suits may be brought only in designated courts,1018 and this rule applies equally to suits by states against the United States.1019 Congress may also grant or withhold immunity from suit on behalf of government corporations.1020

Suits Against United States Officials.

United States v. Lee, a 5-to-4 decision, qualified earlier holdings that a judgment affecting the property of the United States was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule “if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiff when the United States is not a defendant or a necessary party to the suit.”1021 Except, nevertheless, for an occasional case like Kansas v. United States,1022 which held that a state cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the government and would in effect be a suit against the United States.1023 Even more significant is Stanley v. Schwalby,1024 holding that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Subsequent cases reaffirm the rule of United States v. Lee that, where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.1025 On the other hand, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.1026 But, as the Court has pointed out, it is not “an easy matter to reconcile all of the decisions of the court in this class of cases,”1027 and, as Justice Frankfurter quite justifiably stated in a dissent, “the subject is not free from casuistry.”1028 Justice Douglas’ characterization of Land v. Dollar, “this is the type of case where the question of jurisdiction is dependent on decision of the merits,”1029 is frequently applicable.

Larson v. Domestic & Foreign Corp.,1030 illuminates these obscurities somewhat. A private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company’s failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute and therefore a suit against the United States. It held that, although an officer in such a situation is not immune from suits for his own torts, his official action, though tortious, cannot be enjoined or diverted, because it is also the action of the sovereign.1031 The Court then proceeded to repeat the rule that “the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff ’s property) can be regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void.”1032 The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: “The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”1033

Suits against officers involving the doctrine of sovereign immunity have been classified into four general groups by Justice Frankfurter. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the government or calls “for an assertion of what is unquestionably official authority.”1034 Such suits, of course, cannot be maintained.1035 Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.1036 Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are maintainable.1037 Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.1038 This category of cases presents the greatest difficulties because these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.

Suits Against Government Corporations.

The multiplica- tion of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer v. RFC,1039 the Court held that the government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance is a matter of ascertaining the congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.1040 On the other hand, Indian nations are exempt from suit without further congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties.1041

Suits Between Two or More States

The extension of federal judicial power to controversies between states and the vesting of original jurisdiction in the Supreme Court of suits to which a state is a party had its origin in experience. Prior to independence, disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation, Congress was made “the last resort on appeal” to resolve “all disputes and differences . . . between two or more States concerning boundary, jurisdiction, or any other cause whatever,” and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten states.1042 It is hardly surprising, therefore, that during its first 60 years the only state disputes coming to the Supreme Court were boundary disputes1043 or that such disputes constitute the largest single number of suits between states. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization, other types of cases have occurred with increasing frequency.

Boundary Disputes: The Law Applied.

Of the earlier ex- amples of suits between states, that between New Jersey and New York1044 is significant for the application of the rule laid down earlier in Chisholm v. Georgia that the Supreme Court may proceed ex parte if a state refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between states, yet it does not exclude any,1045 that a boundary dispute is a justiciable and not a political question,1046 and that a prescribed rule of decision is unnecessary in such cases. On the last point, Justice Baldwin stated: “The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.”1047

Modern Types of Suits Between States.

Beginning with Missouri v. Illinois & Chicago District,1048 which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like, have become an increasing source of suits between states. Such suits have been especially frequent in the western states,1049 where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas v. Colorado,1050 the Court established the principle of the equitable division of river or water resources between conflicting state interests. In New Jersey v. New York,1051 where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: “A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the River might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may be.”1052

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a state as the donee of the bonds of another to collect thereon,1053 by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former,1054 by Arkansas to enjoin Texas from interfering with the performance of a contract by a Texas foundation to contribute to the construction of a new hospital in the medical center of the University of Arkansas,1055 of one state against another to enforce a contract between the two,1056 of a suit in equity between states for the determination of a decedent’s domicile for inheritance tax purposes,1057 and of a suit by two states to restrain a third from enforcing a natural gas measure that purported to restrict the interstate flow of natural gas from the state in the event of a shortage.1058

In Texas v. New Jersey,1059 the Court adjudicated a multistate dispute about which state should be allowed to escheat intangible property consisting of uncollected small debts held by a corporation. Emphasizing that the states could not constitutionally provide a rule of settlement and that no federal statute governed the matter, the Court evaluated the possible rules and chose the one easiest to apply and least likely to lead to continuing disputes.

In general, in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term “controversies between two or more States” enunciated in Rhode Island v. Massachusetts,1060 and fortified by Chief Justice Marshall’s dictum in Cohens v. Virginia,1061 concerning jurisdiction because of the parties to a case, that “it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.”1062

Cases of Which the Court Has Declined Jurisdiction.

In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. In Alabama v. Arizona,1063 where Alabama sought to enjoin nineteen states from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between states will be exercised only when absolutely necessary, that the equity requirements in a suit between states are more exacting than in a suit between private persons, that the threatened injury to a plaintiff state must be of great magnitude and imminent, and that the burden on the plaintiff state to establish all the elements of a case is greater than the burden generally required by a petitioner seeking an injunction in cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant state must show that it “has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to . . . the common law or equity systems of jurisprudence.”1064 The fact that the trust property was sufficient to satisfy the claims of both states and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,1065 where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a state may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.1066 Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable.1067 Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri’s courts or in a federal district court in Missouri.

The Problem of Enforcement: Virginia v. West Virginia.

A very important issue in interstate litigation is the enforce- ment of the Court’s decree, once it has been entered. In some types of suits, this issue may not arise, and if it does, it may be easily met. Thus, a judgment putting a state in possession of disputed territory is ordinarily self-executing. But if the losing state should oppose execution, refractory state officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. Likewise an injunction may be enforced against state officials as individuals by civil or criminal proceedings. Those judgments, on the other hand, that require a state in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion of the state debt of original Virginia owed by West Virginia after its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt.

The suit was begun in 1906, and a judgment was rendered against West Virginia in 1915. Finally, in 1917, Virginia filed a suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia legislature to levy a tax for payment of the judgment.1068 Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,1069 the Court proceeded to hold that it applied with the same force to states as to other litigants1070 and to consider appropriate remedies for the enforcement of its authority. In this connection, Chief Justice White declared: “As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the Federal Government, judicial, legislative, or executive, which may be appropriately exercised.”1071 The Court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term. Before that could occur, West Virginia accepted the Court’s judgment and entered into an agreement with Virginia to pay it.1072

Enforcement Authority Includes Ordering Disgorgement and Reformation of Certain Agreements.

More recently, the Court, noting that proceedings under its original jurisdiction are “basically equitable,” has taken the view that its enforcement authority encompasses ordering disgorgement of part of one state’s gain from its breach of an interstate compact, as well as reforming certain agreements adopted by the states.1073 In so doing, the Court emphasized that its enforcement authority derives both from its “inherent authority” to apportion interstate streams between states equitably and from Congress’s approval of interstate compacts. As to its inherent authority, the Court noted that states bargain for water rights “in the shadow of ” the Court’s broad power to apportion them equitably and it is “difficult to conceive” that a state would agree to enter an agreement as to water rights if the Court lacked the power to enforce the agreement.1074 The Court similarly reasoned that its remedial authority “gains still greater force” because a compact between the states, “having received Congress’s blessing, counts as federal law.”1075 The Court stated, however, that an interstate compact’s “legal status” as federal law could also limit the Court’s enforcement power because the Court cannot order relief that is inconsistent with a compact’s express terms.1076

Controversies Between a State and Citizens of Another State

The decision in Chisholm v. Georgia1077 that cases “between a state and citizens of another state” included those where a state was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a state and citizens of another state have included only those cases where the state has been a party plaintiff or has consented to be sued.1078 As a party plaintiff, a state may bring actions against citizens of other states to protect its legal rights or in some instances as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power, which simultaneously comes within its original jurisdiction, by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.1079 This it does by holding rigorously to the rule that all the party defendants be citizens of other states1080 and by adhering to congressional distribution of its original jurisdiction concurrently with that of other federal courts.1081

Jurisdiction Confined to Civil Cases.

In Cohens v. Virginia,1082 there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a state and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show that the corporation against which the suit was brought was chartered in another state.1083 Subsequently, the Court has ruled that it will not entertain an action by a state to which its citizens are either parties of record or would have to be joined because of the effect of a judgment upon them.1084 In his dictum in Cohens v. Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by states to enforce their penal laws.1085 Sixty-seven years later, the Court wrote this dictum into law in Wisconsin v. Pelican Ins. Co.1086 Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a state is a party, and partly on Justice Iredell’s dissent in Chisholm v. Georgia,1087 where he confined the term “controversies” to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, “controversies between a State and citizens of another State” are confined to civil suits.1088

The State’s Real Interest.

Ordinarily, a state may not sue in its name unless it is the real party in interest with real interests. It can sue to protect its own property interests,1089 and if it sues for its own interest as owner of another state’s bonds, rather than as an assignee for collection, jurisdiction exists.1090 Where a state, in order to avoid the limitation of the Eleventh Amendment, provided by statute for suit in the name of the state to collect on the bonds of another state held by one of its citizens, it was refused the right to sue.1091 Nor can a state sue the citizens of other states on behalf of its own citizens to collect claims.1092

The State as Parens Patriae.

The distinction between suits brought by states to protect the welfare of their citizens as a whole and suits to protect the private interests of individual citizens is not easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,1093 the state was refused permission to sue to enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, because the state was not engaged in shipping these commodities and had no proprietary interest in them. But, in Georgia v. Pennsylvania R.Co.,1094 a closely divided Court accepted a suit by the state, suing as parens patriae and in its proprietary capacity—the latter being treated by the Court as something of a makeweight—seeking injunctive relief against 20 railroads on allegations that the rates were discriminatory against the state and its citizens and their economic interests and that the rates had been fixed through coercive action by the northern roads against the southern lines in violation of the Clayton Antitrust Act. For the Court, Justice Douglas observed that the interests of a state for purposes of invoking the original jurisdiction of the Court were not to be confined to those which are proprietary but rather “embrace the so called ‘quasi-sovereign’ interests which . . . are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.’ ”1095

Discriminatory freight rates, the Justice continued, may cause a blight no less serious than noxious gases in that they may arrest the development of a state and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.”1096

The continuing vitality of this case is in some doubt, as the Court has limited it in a similar case.1097 But the ability of states to act as parens patriae for their citizens in environmental pollution cases seems established, although as a matter of the Supreme Court’s original jurisdiction such suits are not in favor.1098

One clear limitation had seemed to be solidly established until later litigation cast doubt on its foundation. It is no part of a state’s “duty or power,” said the Court in Massachusetts v. Mellon,1099 “to enforce [its citizens’] rights in respect to their relations with the Federal Government. In that field, it is the United States and not the state that represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.” But, in South Carolina v. Katzenbach,1100 while holding that the state lacked standing under Massachusetts v. Mellon to attack the constitutionality of the Voting Rights Act of 19651101 under the Fifth Amendment’s Due Process Clause and under the Bill of Attainder Clause of Article I,1102 the Court decided on the merits the state’s claim that Congress had exceeded its powers under the Fifteenth Amendment.1103 Was the Court here sub silentio permitting it to assert its interest in the execution of its own laws, rather than those enacted by Congress, or its interest in having Congress enact only constitutional laws for application to its citizens, an assertion that is contrary to a number of supposedly venerated cases?1104 Either possibility would be significant in a number of respects.1105

Controversies Between Citizens of Different States

The records of the Federal Convention are silent on why the Framers included controversies between citizens of different states among the judicial power of the United States,1106 but Congress has given “diversity jurisdiction” in one form or another to the federal courts since the Judiciary Act of 1789.1107 The traditional explanation remains that offered by Chief Justice Marshall. “However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.”1108 Other explanations have been offered and controverted,1109 but diversity cases constitute a large bulk of cases on the dockets of the federal courts today, though serious proposals for restricting access to federal courts in such cases have been before Congress for some time.1110 The essential difficulty with this type of jurisdiction is that it requires federal judges to decide issues of local import on the basis of their reading of how state judges would decide them, an oftentimes laborious process, which detracts from the time and labor needed to resolve issues of federal import.

The Meaning of “State” and the District of Columbia Problem.

In Hepburn v. Ellzey,1111 Chief Justice Marshall for the Court confined the meaning of the word “state” as used in the Constitution to “the members of the American confederacy” and ruled that a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizenship. Marshall noted that it was “extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them. But this is a subject for legislative, not for judicial consideration.”1112 The same rule was subsequently applied to citizens of the territories of the United States.1113

Whether the Chief Justice had in mind a constitutional amendment or a statute when he spoke of legislative consideration remains unclear. Not until 1940, however, did Congress attempt to meet the problem by statutorily conferring on federal district courts jurisdiction of civil actions, not involving federal questions, “between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory.”1114 In National Mutual Ins. Co. v. Tidewater Transfer Co.,1115 this act was upheld in a five-to-four decision but for widely divergent reasons by a coalition of Justices. Two Justices thought that Chief Justice Marshall’s 1804 decision should be overruled, but the other seven Justices disagreed; however, three of the seven thought the statute could be sustained under Congress’s power to enact legislation for the inhabitants of the District of Columbia, but the remaining four plus the other two rejected this theory. The statute was upheld because a total of five Justices voted to sustain it, although of the two theories relied on, seven Justices rejected one and six the other. The result, attributable to “conflicting minorities in combination,”1116 means that Hepburn v. Ellzey is still good law insofar as it holds that the District of Columbia is not a state, but is overruled insofar as it holds that District citizens may not use federal diversity jurisdiction.1117

Citizenship of Natural Persons.

For purposes of diversity jurisdiction, state citizenship is determined by the concept of domicile1118 rather than of mere residence.1119 That is, while the Court’s definition has varied throughout the cases,1120 a person is a citizen of the state in which he has his true, fixed, and permanent home and principal establishment and to which he intends to return whenever he is absent from it.1121 Acts may disclose intention more clearly and decisively than declarations.1122 One may change his domicile in an instant by taking up residence in the new place and by intending to remain there indefinitely and one may obtain the benefit of diversity jurisdiction by so changing for that reason alone,1123 provided the change is more than a temporary expedient.1124

If the plaintiff and the defendant are citizens of different states, diversity jurisdiction exists regardless of the state in which suit is brought.1125 Chief Justice Marshall early established that in multi-party litigation, there must be complete diversity, that is, that no party on one side could be a citizen of any state of which any party on the other side was a citizen.1126 It has now apparently been decided that this requirement flows from the statute on diversity rather than from the constitutional grant and that therefore minimal diversity is sufficient.1127 The Court has also placed some issues beyond litigation in federal courts in diversity cases, apparently solely on policy grounds.1128

Citizenship of Corporations.

In Bank of the United States v. Deveaux,1129 Chief Justice Marshall declared: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name.” Nevertheless, the Court upheld diversity jurisdiction in the case because the members of the bank as a corporation were citizens of one state and Deveaux was a citizen of another. The holding that corporations were citizens of the states where their stockholders lived was reaffirmed a generation later,1130 but pressures were building for change. While corporations were assuming an ever more prominent economic role, the Strawbridge rule, which foreclosed diversity suits if any plaintiff had common citizenship with any defendant,1131 was working to close the doors of the federal courts to corporations with stockholders in many states.

Deveaux was overruled in 1844, when, after elaborate argument, a divided Court held that “a corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person.”1132 Ten years later, the Court abandoned this rationale, but it achieved the same result by “indulg[ing] in the fiction that, although a corporation was not itself a citizen for diversity purposes, its shareholders would be conclusively presumed citizens of the incorporating State.”1133 “State of incorporation” remained the guiding rule for determining the place of corporate citizenship until Congress amended the jurisdictional statute in 1958. Concern over growing dockets and companies incorporating in states of convenience then led to a dual citizenship rule whereby “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.”1134 The right of foreign corporations to resort to federal courts in diversity is not one that the states may condition as a qualification for doing business in the state.1135

Unincorporated associations, such as partnerships, joint stock companies, labor unions, governing boards of institutions, and the like, do not enjoy the same privilege as a corporation; the actual citizenship of each of its members must be considered in determining whether diversity exists.1136

Manufactured Diversity.

A litigant who, because of diver- sity of citizenship, can choose whether to sue in state or federal court, will properly consider where the advantages and disadvantages balance, and if diversity is lacking, a litigant who perceives the balance to favor the federal forum will sometimes attempt to create diversity. In the Judiciary Act of 1789, Congress exempted from diversity jurisdiction suits on choses of action in favor of an assignee unless the suit could have been brought in federal court if no assignment had been made.1137 One could create diversity by a bona fide change of domicile even with the sole motive of creating domicile.1138 Similarly, one could create diversity, or defeat it, by choosing a personal representative of the requisite citizenship.1139 Most attempts to manufacture or create diversity have involved corporations. A corporation cannot get into federal court by transferring its claim to a subsidiary incorporated in another state,1140 and for a time the Supreme Court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes of creating diversity.1141 But, in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,1142 it became highly important to the plaintiff company to bring its suit in federal court rather than in a state court. Thus, Black & White, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation; the only change made was the state of incorporation, the name, officers, shareholders, and location of the business remaining the same. A majority of the Court, over a strong dissent by Justice Holmes,1143 saw no collusion and upheld diversity, meaning that the company won whereas it would have lost had it sued in the state court. Black & White Taxicab probably more than anything led to a reexamination of the decision on the choice of law to be applied in diversity litigation.

The Law Applied in Diversity Cases.

By virtue of § 34 of the Judiciary Act of 1789,1144 state law expressed in constitutional and statutory form was regularly applied in federal courts in diversity actions to govern the disposition of such cases. But, in Swift v. Tyson,1145 Justice Story for the Court ruled that state court decisions were not laws within the meaning of § 34 and though entitled to respect were not binding on federal judges, except with regard to matters of a “local nature,” such as statutes and interpretations thereof pertaining to real estate and other immovables, in contrast to questions of general commercial law as to which the answers were dependent not on “the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence.”1146 The course of decision over the period of almost one hundred years was toward an expansion of the areas in which federal judges were free to construct a federal common law and a concomitant contraction of the definition of “local” laws.1147 Although dissatisfaction with Swift v. Tyson was almost always present, within and without the Court,1148 it was the Court’s decision in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.1149 that brought disagreement to the strongest point and perhaps precipitated the overruling of Swift v. Tyson in Erie Railroad Co. v. Tompkins.1150

“It is impossible to overstate the importance of the Erie decision. It announces no technical doctrine of procedure or jurisdiction, but goes to the heart of the relations between the Federal Government and the states, and returns to the states a power that had for nearly a century been exercised by the federal government.”1151 Erie was remarkable in a number of ways aside from the doctrine it announced. It reversed a 96-year-old precedent, which counsel had specifically not questioned; it reached a constitutional decision when a statutory interpretation was available though perhaps less desirable; and it marked the only time in United States constitutional history when the Court has held that it had undertaken an unconstitutional action.1152

Tompkins was injured by defendant’s train while he was walking along the tracks. He was a citizen of Pennsylvania, and the railroad was incorporated in New York. Had he sued in a Pennsylvania court, state decisional law was to the effect that, because he was a trespasser, the defendant owned him only a duty not to injure him through wanton or willful misconduct;1153 the general federal law treated him as a licensee who could recover for negligence. Tompkins sued and recovered in federal court in New York and the railroad presented the issue to the Supreme Court as one covered by “local” law within the meaning of Swift v. Tyson. Justice Brandeis for himself and four other Justices, however, chose to overrule the early case.

First, it was argued that Tyson had failed to bring about uniformity of decision and that its application discriminated against citizens of a state by noncitizens. Justice Brandeis cited recent researches1154 indicating that § 34 of the 1789 Act included court decisions in the phrase “laws of the several States.” “If only a question of statutory construction were involved we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear, and compels us to do so.”1155 For a number of reasons, it would not have been wise to have overruled Tyson on the basis of arguable new discoveries.1156

Second, the decision turned on the lack of power vested in Congress to prescribe rules for federal courts in state cases. “There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. No clause in the Constitution purports to confer such a power upon the federal courts.”1157 But having said this, Justice Brandeis made it clear that the unconstitutional assumption of power had been made not by Congress but by the Court itself. “[W]e do not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.”1158

Third, the rule of Erie replacing Tyson is that “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. Whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.”1159

Since 1938, the effect of Erie has first increased and then diminished, as the nature of the problems presented changed. Thus, the Court at first indicated that not only were the decisions of the highest court of a state binding on a federal diversity court, but also decisions of intermediate appellate courts1160 and courts of first instance,1161 even where the decisions bound no other state judge except as they were persuasive on their merits. It has now retreated from this position, concluding that federal judges are to give careful consideration to lower state court decisions and to old, perhaps outmoded decisions, but that they must find for themselves the state law if the state’s highest court has not spoken definitively within a period that would raise no questions about the continued viability of the decision.1162 In the event of a state supreme court reversal of an earlier decision, the federal courts are, of course, bound by the later decision, and a judgment of a federal district court, correct when rendered, must be reversed on appeal if the state’s highest court in the meantime has changed the applicable law.1163 In diversity cases that present conflicts of law problems, the Court has reiterated that the district court is to apply the law of the state in which it sits, so that in a case in State A in which the law of State B is applicable, perhaps because a contract was made there or a tort was committed there, the federal court is to apply State A’s conception of State B’s law.1164

The greatest difficulty in applying the Erie doctrine has been in cases in which issues of procedure were important.1165 The process was initiated in 1945 when the Court held that a state statute of limitations, which would have barred suit in state court, would bar it in federal court, although as a matter of federal law the case still could have been brought in federal court.1166 The Court regarded the substance-procedure distinction as immaterial. “[S]ince a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.”1167 The standard to be applied was compelled by the “intent” of Erie, which “was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.”1168 The Court’s application of this standard created substantial doubt that the Federal Rules of Civil Procedure had any validity in diversity cases.1169

But, in two later cases, the Court contracted the application of Erie in matters governed by the Federal Rules. Thus, in the earlier case, the Court said that “outcome” was no longer the sole determinant and countervailing considerations expressed in federal policy on the conduct of federal trials should be considered; a state rule making it a question for the judge rather than a jury of a particular defense in a tort action had to yield to a federal policy enunciated through the Seventh Amendment of favoring juries.1170 Some confusion has been injected into consideration of which law to apply— state or federal—in the absence of a federal statute or a Federal Rule of Civil Procedure.1171 In an action for damages, the federal courts were faced with the issue of the application either of a state statute, which gave the appellate division of the state courts the authority to determine if an award is excessive or inadequate if it deviates materially from what would be reasonable compensation, or of a federal judicially created practice of review of awards as so exorbitant that it shocked the conscience of the court. The Court determined that the state statute was both substantive and procedural, which would result in substantial variations between state and federal damage awards depending whether the state or the federal approach was applied; it then followed the mode of analysis exemplified by those cases emphasizing the importance of federal courts reaching the same outcome as would the state courts,1172 rather than what had been the prevailing standard, in which the Court balanced state and federal interests to determine which law to apply.1173 Emphasis upon either approach to considerations of applying state or federal law reflects a continuing difficulty of accommodating “the constitutional power of the states to regulate the relations among their citizens . . . [and] the constitutional power of the Federal Government to determine how its courts are to be operated.”1174 Additional decisions will be required to determine which approach, if either, prevails. The latter ruling simplified the matter greatly. Erie is not to be the proper test when the question is the application of one of the Rules of Civil Procedure; if the rule is valid when measured against the Enabling Act and the Constitution, it is to be applied regardless of state law to the contrary.1175

Although it seems clear that Erie applies in nondiversity cases in which the source of the right sued upon is state law,1176 it is equally clear that Erie is not applicable always in diversity cases whether the nature of the issue be substantive or procedural. Thus, it may be that there is an overriding federal interest which compels national uniformity of rules, such as a case in which the issue is the appropriate rule for determining the liability of a bank which had guaranteed a forged federal check,1177 in which the issue is the appropriate rule for determining whether a tortfeasor is liable to the United States for hospitalization of a soldier and loss of his services1178 and in which the issue is the appropriate rule for determining the validity of a defense raised by a federal officer sued for having libeled one in the course of his official duties.1179 In such cases, when the issue is found to be controlled by federal law, common or otherwise, the result is binding on state courts as well as on federal.1180 Despite, then, Justice Brandeis’ assurance that there is no “federal general common law,” there is a common law existing and developing in the federal courts, even in diversity cases, which will sometimes control decision.1181

Controversies Between Citizens of the Same State Claiming Land Under Grants of Different States

The genesis of this clause was in the report of the Committee of Detail which vested the power to resolve such land disputes in the Senate,1182 but this proposal was defeated in the Convention,1183 which then added this clause to the jurisdiction of the federal judiciary without reported debate.1184 The motivation for this clause was the existence of boundary disputes affecting ten sates at the time the Convention met. With the adoption of the Northwest Ordinance of 1787, the ultimate settlement of the boundary disputes, and the passing of land grants by the states, this clause, never productive of many cases, became obsolete.1185

Controversies Between a State, or the Citizens Thereof, and Foreign States, Citizens, or Subjects

The scope of this jurisdiction has been limited both by judicial decisions and the Eleventh Amendment. By judicial application of the law of nations, a foreign state is immune from suit in the federal courts without its consent,1186 an immunity which extends to suits brought by states of the American Union.1187 Conversely, the Eleventh Amendment has been construed to bar suits by foreign states against a state of the United States.1188 Consequently, the jurisdiction conferred by this clause comprehends only suits brought by a state against citizens or subjects of foreign states, by foreign states against American citizens, citizens of a state against the citizens or subjects of a foreign state, and by aliens against citizens of a state.1189

Suits by Foreign States.

The privilege of a recognized for- eign state to sue in the courts of another state upon the principle of comity is recognized by both international law and American constitutional law.1190 To deny a sovereign this privilege “would manifest a want of comity and friendly feeling.”1191 Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign state.1192 As the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit.1193 Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.1194 The rule that a foreign nation instituting a suit in a federal district court cannot invoke sovereign immunity as a defense to a counterclaim growing out of the same transaction has been extended to deny a claim of immunity as a defense to a counterclaim extrinsic to the subject matter of the suit but limited to the amount of the sovereign’s claim.1195 Moreover, certain of the benefits extending to a domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. A foreign state does not receive the benefit of the rule which exempts the United States and its member states from the operation of the statute of limitations, because those considerations of public policy back of the rule are regarded as absent in the case of the foreign sovereign.1196

Indian Tribes.

Within the terms of Article III, an Indian tribe is not a foreign state and hence cannot sue in the courts of the United States. This rule was applied in Cherokee Nation v. Georgia,1197 where Chief Justice Marshall conceded that the Cherokee Nation was a state, but not a foreign state, being a part of the United States and dependent upon it. Other passages of the opinion specify the elements essential of a foreign state for purposes of jurisdiction, such as sovereignty and independence.

Narrow Construction of the Jurisdiction.

As in cases of di- versity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809, the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as “late of the district of Maryland,” but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.1198 The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed § 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction when an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.1199 This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.1200 These rules, however, do not preclude a suit between citizens of the same state if the plaintiffs are merely nominal parties and are suing on behalf of an alien.1201

Footnotes

800
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821). [Back to text]
801
M. Farrand, supra at 22, 211–212, 220, 244; 2 id. at 146–47, 186–87. [Back to text]
802
Id. at 423–24, 430, 431. [Back to text]
803
1 Stat. 73. The district courts were given cognizance of “suits for penalties and forfeitures incurred, under the laws of the United States” and “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States . . . .” Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions, see supra. [Back to text]
804
Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793, § 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted. [Back to text]
805
Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142; Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15. [Back to text]
806
Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, supra. [Back to text]
807
For a brief summary, see Hart & Wechsler (6th ed.), supra at 743–748. [Back to text]
808
28 U.S.C. § 1331(a). The original Act was worded slightly differently. [Back to text]
809
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821). [Back to text]
810
C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 17 (4th ed. 1983). [Back to text]
811
See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. ___, No. 14–1132, slip op. at 9–10 (2016) (“This Court has long read the words ‘arising under’ in Article III to extend quite broadly, to all cases in which a federal question is an ingredient of the action . . . In the statutory context, however, we . . . give those same words a narrower scope in the light of § 1331’s history, the demands of reason and coherence, and the dictates of sound judicial policy.”) (internal brackets, citations, and quotations omitted). [Back to text]
812
See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983). [Back to text]
813
Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305–308 (1923). If the complaint states a case arising under the Constitution or federal law, then federal jurisdiction exists even though on the merits the party may have no federal right. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course, dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933). [Back to text]
814
Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974). [Back to text]
815
Such was the rule derived from Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). [Back to text]
816
American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913). [Back to text]
817
Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936). [Back to text]
818
299 U.S. at 112–13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 U.S. 426 (1964); Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921). [Back to text]
819
For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n.51 (1959). [Back to text]
820
E.g., Pacific R.R. Removal Cases, 115 U.S. 1 (1885); see also id. at 24 (Chief Justice Waite dissenting). [Back to text]
821
§ 12, 1 Stat. 79. [Back to text]
822
The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405–406 (1969), and in Hart & Wechsler (6th ed.), supra at 396–398. See 28 U.S.C. §§ 1442, 1442a. [Back to text]
823
Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25 Stat. 433. [Back to text]
824
28 U.S.C. § 1441. [Back to text]
825
28 U.S.C. § 1443. [Back to text]
826
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments. [Back to text]
827
Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429–430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868). [Back to text]
828
100 U.S. 257 (1880). [Back to text]
829
100 U.S. at 263–64. [Back to text]
830
100 U.S. at 264–65. [Back to text]
831
Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991). [Back to text]
832
Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975). [Back to text]
833
22 U.S. (9 Wheat.) 738 (1824). [Back to text]
834
The First Bank could not sue because it was not so authorized. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall interpreted as conveying jurisdiction, was long construed simply to give a party the right to sue and be sued without itself creating jurisdiction, Bankers Trust Co. v. Texas & P. Ry., 241 U.S. 295 (1916), but, in American National Red Cross v. S. G., 505 U.S. 247 (1992), a 5-to-4 decision, the Court held that, when a federal statutory charter expressly mentions the federal courts in its “sue and be sued” provision, the charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal courts, without expressly mentioning them, does not confer jurisdiction. [Back to text]
835
115 U.S. 1 (1885). [Back to text]
836
§ 4, 22 Stat. 162. [Back to text]
837
§ 5, 38 Stat. 803. [Back to text]
838
See 28 U.S.C. § 1349. [Back to text]
839
§ 301, 61 Stat. 156 (1947), 29 U.S.C. § 185. [Back to text]
840
Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented a federal question sufficient for federal jurisdiction. Id. at 449–52, 459–61 (opinion of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 371 U.S. 195 (1962). [Back to text]
841
Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). [Back to text]
842
Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however, to be totally disregarded. “State law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy . . . . Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957). [Back to text]
843
For example, when federal statutes create new duties without explicitly creating private federal remedies for their violation, the willingness of the federal courts to infer private causes will implicate the federal courts’ workload. During the mid- 20th century, the Court would imply causes of action that were not explicit in the text of a statute as a routine matter. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (“We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.”); Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies.”). In the late 1970s, the Court began to move away from such an approach, see Cannon v. University of Chicago, 441 U.S. 677, 717 (1979) (“When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.”), and more recently has instead held that for a court to recognize a statutory cause of action, the statute itself must “displa[y] an intent to create” both a private right and a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In the context of constitutional rights, the Court in 1971 recognized (in the absence of any federal statute) an implied damages remedy to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Since Bivens, the Court has recognized a similar remedy for a violation of the equal protection component of the Fifth Amendment’s Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amendment Cruel and Unusual Punishment Clause violation, see Carlson v. Green, 446 U.S. 14, 19 (1980). However, these three cases are anomolous and represent the “only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” See Ziglar v. Abbasi, 582 U.S. ___, No. 15–1358, slip op. at 7 (2017). Instead, in a series of cases, the Court has rejected extending the Bivens remedy to other contexts. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting an Eighth Amendment-based Bivens claim against employees of a privately operated federal prison); Wilkie v. Robbins, 551 U.S. 537, 547–48, 562 (2007) (refusing to recognize a Bivens claim against officials of the Bureau of Land Management accused of harassment and intimidation aimed at extracting an easement across private property in violation of the Fourth and Fifth Amendments); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to extend Bivens to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471 (1994) (declining to imply a Bivens cause of action directly against an agency of the Federal Government); Schweiker v. Chilicki, 487 U.S. 412 (1988) (refusing to infer a damages action against individual government employees alleged to have violated due process in their handling of Social Security applications); United States v. Stanley, 483 U.S. 669, 671–72, 683–84 (1987) (holding that Bivens does not extend to any claim incident to military service); Bush v. Lucas, 462 U.S. 367, 389 (1983) (declining to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment); Chappell v. Wallace, 462 U.S. 296, 298 (1983) (declining to extend Bivens to claims by military personnel against superior officers). Recognizing that “it is a significant step under separation-of-powers principles for a court to determine that it has the authority . . . to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation,” the Court in Ziglar v. Abbasi, without overturning Bivens, held that if a case is different in a meaningful way from the three previous instances in which the Court recognized a damages remedy, Bivens should not be extended to a new context if there are “special factors” counseling hesitation. See Ziglar, slip op. at 10–16. In particular, if there are reasons to think that Congress might have questioned the need for a damages remedy, courts must refrain from creating such a remedy. Id. at 10. Moreover, the Court supported its conclusion by noting that courts generally are not well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Id. at 12. In addition “federal common law” may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their “arising under” jurisdiction. See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972); Int’l Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987). The Court, however, has been somewhat wary of finding “federal common law” in the absence of some congressional authorization to formulate substantive rules, see Texas Industries v. Radcliff Materials, 451 U.S. 630, 640 (1981), and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 at 107 (1981). [Back to text]
844
28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978); Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to “the Constitution and laws of the United States,” when the substantive and jurisdictional aspects were separated and codified, § 1983 retained the all-inclusive “laws” provision, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was a jurisdictional amount provision in the federal question statute but is of little significance today. [Back to text]
845
See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that only cases involving personal rights, that could not be valued in dollars, could be brought under § 1343(3), and that cases involving property rights, which could be so valued, had to be brought under the federal question statute. This attempted distinction was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546–48 (1972). On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978). See also Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compensatory damages must be based on injury to the plaintiff, not on some abstract valuation of constitutional rights). [Back to text]
846
28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. 94–574, 90 Stat. 2721; Pub. L. 96–486, 94 Stat. 2369. [Back to text]
847
Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). This had been the rule since at least McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice and waiting period before bringing suit in state court under § 1983, is preempted). [Back to text]
848
Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes. [Back to text]
849
Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94–559, 90 Stat. 2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980). [Back to text]
850
E.g., Civil Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat. 349 (1980), 42 U.S.C. §§ 1997et seq. [Back to text]
851
E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S. 651 (1977). [Back to text]
852
Maine v. Thiboutot, 448 U.S. 1 (1980). [Back to text]
853
Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534–543 (1974). [Back to text]
854
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822–28 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966). [Back to text]
855
Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289 U.S. 238, 245–46 (1933). See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of “ancillary jurisdiction”). [Back to text]
856
Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546–550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court held in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), held that, when a pendent claim of state law involves a claim that is against a state for purposes of the Eleventh Amendment, federal courts may not adjudicate it. [Back to text]
857
United Mine Workers v. Gibbs, 383 U.S. 715, 726–27 (1966). [Back to text]
858
The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship. [Back to text]
859
Moore v. New York Cotton Exchange, 270 U.S. 593 (1926). [Back to text]
860
Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). [Back to text]
861
Rosado v. Wyman, 397 U.S. 397, 400–05 (1970). [Back to text]
862
Judge Friendly originated the concept in Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971). [Back to text]
863
Aldinger v. Howard, 427 U.S. 1 (1976). [Back to text]
864
490 U.S. 545 (1989). [Back to text]
865
490 U.S. at 553, 556. [Back to text]
866
Act of Dec. 1, 1990, Pub. L. 101–650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367. In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the Court, despite the absence of language making § 1367 applicable, held that the statute gave district courts jurisdiction over state-law claims in cases originating in state court and then removed to federal court. [Back to text]
867
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); see also the bankruptcy cases, Schumacher v. Beeler, 293 U.S. 367 (1934), and Williams v. Austrian, 331 U.S. 642 (1947). [Back to text]
868
461 U.S. 480 (1983). [Back to text]
869
E.g., Mesa v. California, 489 U.S. 121, 136–37 (1989) (would present grave constitutional problems). [Back to text]
870
On § 25, see “Judicial Review and National Supremacy,” supra. The present statute is 28 U.S.C. § 1257(a), which provides that review by writ of certiorari is available where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any state is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Prior to 1988, there was a right to mandatory appeal in cases in which a state court had found invalid a federal statute or treaty or in which a state court had upheld a state statute contested under the Constitution, a treaty, or a statute of the United States. See the Act of June 25, 1948, 62 Stat. 929. The distinction between certiorari and appeal was abolished by the Act of June 27, 1988, Pub. L. 100–352, § 3, 102 Stat. 662. [Back to text]
871
28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch. 3 (6th ed. 1986). [Back to text]
872
Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v. California, 362 U.S. 60, 62 (1960); Thompson v. City of Louisville, 362 U.S. 199, 202 (1960); Metlakatla Indian Community v. Egan, 363 U.S. 555 (1960); Powell v. Texas, 392 U.S. 514, 516, 517 (1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court for the Borough of Norfolk, Virginia. [Back to text]
873
Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). See also San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt v. Ohio, 451 U.S. 619 (1981); Minnick v. California Dep’t of Corrections, 452 U.S. 105 (1981); Florida v. Thomas, 532 U.S. 774 (2001). The Court has developed a series of exceptions permitting review when the federal issue in the case has been finally determined but there are still proceedings to come in the lower state courts. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476–487 (1975). See also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989); Duquesne Light Co. v. Barasch, 488 U.S. 299, 304 (1989); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.42 (1982). [Back to text]
874
Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67–69 (1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123–24 (1945). [Back to text]
875
New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); See also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 77 (1988); Webb v. Webb, 451 U.S. 493, 501 (1981). The same rule applies on habeas corpus petitions. E.g., Picard v. Connor, 404 U.S. 270 (1972). [Back to text]
876
Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874); Black v. Cutter Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958). [Back to text]
877
Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945). Whereas declining to review judgments of state courts that rest on an adequate and independent determination of state law protects the sovereignty of states, the Court has emphasized that review of state court decisions that invalidate state laws based on interpretations of federal law, “far from undermining state autonomy, is the only way to vindicate it” because a correction of a state court’s federal errors necessarily returns power to the state government. See Kansas v. Carr, 577 U.S. ___, No. 14–449, slip op. at 9 (2016) (quoting Kansas v. Marsh, 548 U.S. 163, 184 (2006) (Scalia, J., concurring)) (emphasis in original). [Back to text]
878
E.g., Howlett v. Rose, 496 U.S. 356, 366 (1990); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958). [Back to text]
879
Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961). [Back to text]
880
Wood v. Chesborough, 228 U.S. 672, 676–80 (1913). [Back to text]
881
Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54–55 (1934); Williams v. Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 351 U.S. 277, 281 (1956); Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1872); cf. Department of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965). [Back to text]
882
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375–376 (1968). [Back to text]
883
Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 (1938); Raley v. Ohio, 360 U.S. 423, 434–437 (1959). When there is uncertainty about what the state court did, the usual practice was to remand for clarification. Minnesota v. National Tea Co., 309 U.S. 551 (1940); California v. Krivda, 409 U.S. 33 (1972). See California Dept. of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a controversial decision, the Court has adopted a presumption that when a state court decision fairly appears to rest on federal law or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion the Court will accept as the most reasonable explanation that the state court decided the case as it did because it believed that federal law required it to do so. If the state court wishes to avoid the presumption it must make clear by a plain statement in its judgment or opinion that discussed federal law did not compel the result, that state law was dispositive. Michigan v. Long, 463 U.S. 1032 (1983). See Harris v. Reed, 489 U.S. 255, 261 n.7 (1989) (collecting cases); Coleman v. Thompson, 501 U.S. 722 (1991) (applying the rule in a habeas case). [Back to text]
884
Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 636 (1874). A new state rule cannot be invented for the occasion in order to defeat the federal claim. E.g., Ford v. Georgia, 498 U.S. 411, 420–425 (1991). [Back to text]
885
Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 (1917); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 290 (1958). [Back to text]
886
Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 (1917); Ward v. Love County, 253 U.S. 17, 22 (1920); Staub v. City of Baxley, 355 U.S. 313 (1958). [Back to text]
887
Beard v. Kindler, 558 U.S. ___, No. 08–992, slip op. (2009) (firmly established procedural rule adequate state ground even though rule is discretionary). Accord, Walker v. Martin, 562 ___, No. 09–996, slip op. (2010). See also Nickel v. Cole, 256 U.S. 222, 225 (1921); Wolfe v. North Carolina, 364 U.S. 177, 195 (1960). But see Davis v. Wechsler, 263 U.S. 22 (1923); Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949). [Back to text]
888
Davis v. Wechsler, 263 U.S. 22, 24–25 (1923); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455–458 (1958); Barr v. City of Columbia, 378 U.S. 146, 149 (1964). This rationale probably explains Henry v. Mississippi, 379 U.S. 443 (1965). See also in the criminal area, Edelman v. California, 344 U.S. 357, 362 (1953) (dissenting opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 U.S. 958 (1972) (dissenting opinion). [Back to text]
889
United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793). [Back to text]
890
Bors v. Preston, 111 U.S. 252 (1884). [Back to text]
891
Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884). [Back to text]
892
280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351. [Back to text]
893
24 U.S. (11 Wheat.) 467 (1826). [Back to text]
894
In re Baiz, 135 U.S. 403, 432 (1890). [Back to text]
895
Ex parte Gruber, 269 U.S. 302 (1925). [Back to text]
896
1 Stat. 80–81 (1789). Jurisdiction in the Supreme Court since 1978 has been original but not exclusive. Pub. L. 95–393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1). [Back to text]
897
G. GILMORE & C. BLACK, THE LAW OF ADMIRALTY ch. 1 (1957). [Back to text]
898
The records of the Convention do not shed light on the Framers’ views about admiralty. The present clause was contained in the draft of the Committee on Detail. 2 M. Farrand, supra at 186–187. None of the plans presented to the Convention, with the exception of an apparently authentic Charles Pinckney plan, 3 id. at 601–04, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 CORNELL L.Q. 460 (1925). [Back to text]
899
G. Gilmore & C. Black, supra at ch. 1. In DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jurisprudential argument against the then-restrictive English system. See also Waring v. Clarke, 46 U.S. (5 How.) 441, 451–59 (1847); New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 34, 385–390 (1848). [Back to text]
900
§ 9, 1 Stat. 77 (1789), now 28 U.S.C. § 1333 in only slightly changed form. For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Suggestions, 50 COLUM. L. REV. 259 (1950). [Back to text]
901
E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D. Pa. 1829) (Justice Washington). [Back to text]
902
The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Samuel, 14 U.S. (1 Wheat.) 9 (1816); The Octavig, 14 U.S. (1 Wheat.) 20 (1816). [Back to text]
903
New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 334, 386 (1848); see also Waring v. Clarke, 46 U.S. (5 How.) 441 (1847). [Back to text]
904
Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 690, 691 (1950); Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 285 (1952); Romero v. International Terminal Operating Co., 358 U.S. 354, 360–61 (1959). For a recent example, see Moragne v. States Marine Lines, 398 U.S. 375 (1970); United States v. Reliable Transfer Co., 421 U.S. 397 (1975). Compare The Lottawanna, 88 U.S. (21 Wall.) 558, 576–77 (1875) (“But we must always remember that the court cannot make the law, it can only declare it. If, within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department”). States can no more override rules of judicial origin than they can override acts of Congress. Wilburn Boat Co. v. Firemen’s Fund Ins. Co., 348 U.S. 310, 314 (1955). [Back to text]
905
88 U.S. (21 Wall.) 558 (1875). [Back to text]
906
88 U.S. at 572. [Back to text]
907
88 U.S. at 574–75. [Back to text]
908
88 U.S. at 577. [Back to text]
909
E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 564 (1871); Moore v. American Transp. Co., 65 U.S. (24 How.) 1, 39 (1861); Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883); The Robert W. Parsons, 191 U.S. 17 (1903). [Back to text]
910
Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re Garnett, 141 U.S. 1 (1891). The second prong of the Necessary and Proper Clause is the authorization to Congress to enact laws to carry into execution the powers vested in other departments of the Federal Government. See Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42 (1934). [Back to text]
911
Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889). [Back to text]
912
In re Garnett, 141 U.S. 1, 12 (1891). See also Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920); Crowell v. Benson, 285 U.S. 22, 55 (1932). The Jones Act, under which injured seamen may maintain an action at law for damages, has been reviewed as an exercise of legislative power deducible from the Admiralty Clause. Panama R.R. v. Johnson, 264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal Operating Co., 358 U.S. 354, 360–361 (1959). On the limits to the congressional power, see Panama R.R. v. Johnson, 264 U.S. at 386–87; Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43–44 (1934). [Back to text]
913
Thus, Justice McReynolds’ assertion of the paramountcy of congressional power in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917), was not disputed by the four dissenters in that case and is confirmed in subsequent cases critical of Jensen which in effect invite congressional modification of maritime law. E.g., Davis v. Department of Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law has excited some relevant controversy. In American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 516, 545 (1828), Chief Justice Marshall declared that admiralty cases do not “arise under the Constitution or laws of the United States” but “are as old as navigation itself; and the law, admiralty and maritime as it has existed for ages, is applied by our Courts to the cases as they arise.” In Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in federal court on a seaman’s suit for personal injury on an admiralty claim, contending that cases arising under the general maritime law are “civil actions” that arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Five Justices in an opinion by Justice Frankfurter disagreed. Maritime cases do not arise under the Constitution or laws of the United States for federal question purposes and must, absent diversity, be instituted in admiralty where there is no jury trial. The dissenting four, Justice Brennan for himself and Chief Justice Warren and Justices Black and Douglas, contended that maritime law, although originally derived from international sources, is operative within the United States only by virtue of having been accepted and adopted pursuant to Article III, and accordingly judicially originated rules formulated under authority derived from that Article are “laws” of the United States to the same extent as those enacted by Congress. [Back to text]
914
DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847). [Back to text]
915
Sheppard v. Taylor, 30 U.S. (5 Pet.) 675, 710 (1831). A seaman employed by the government making a claim for wages cannot proceed in admiralty but must bring his action under the Tucker Act in the Court of Claims or in the district court if his claim does not exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In Kossick v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a seaman and a shipowner whereby the latter in consideration of the seaman’s forbearance to press his maritime right to maintenance and cure promised to assume the consequences of improper treatment of the seaman at a Public Health Service Hospital was held to be a maritime contract. See also Archawski v. Hanioti, 350 U.S. 532 (1956). [Back to text]
916
Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 31 (1871); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955). Whether admiralty jurisdiction exists if the vessel is not engaged in navigation or commerce when the insurance claim arises is open to question. Jeffcott v. Aetna Ins. Co., 129 F.2d 582 (2d Cir. 1942), cert. denied, 317 U.S. 663 (1942). Contracts and agreements to procure marine insurance are outside the admiralty jurisdiction. Compagnie Francaise De Navigation A Vapeur v. Bonnasse, 19 F.2d 777 (2d Cir. 1927). [Back to text]
917
Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For recent Court difficulties with exculpatory features of such contracts, see Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955); Boston Metals Co. v. The Winding Gulf, 349 U.S. 122 (1955); United States v. Nielson, 349 U.S. 129 (1955); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Crescent Towage & Salvage Co., 372 U.S. 697 (1963). [Back to text]
918
Atlee v. Packet Co., 88 U.S. (21 Wall.) 389 (1875); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872). See also Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932). [Back to text]
919
The Grapeshot, 76 U.S. (9 Wall.) 129 (1870); O’Brien v. Miller, 168 U.S. 287 (1897); The Aurora, 14 U.S. (1 Wheat.) 94 (1816); Delaware Mut. Safety Ins. Co. v. Gossler, 96 U.S. 645 (1877). But ordinary mortgages even though the securing property is a vessel, its gear, or cargo are not considered maritime contracts. Bogart v. The Steamboat John Jay, 58 U.S. (17 How.) 399 (1854); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 32 (1934). [Back to text]
920
New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The General Smith, 17 U.S. (4 Wheat.) 438 (1819). There is admiralty jurisdiction even though the repairs are not to be made in navigable waters but, perhaps, in dry dock. North Pacific SS. Co. v. Hall Brothers Marine R. & S. Co., 249 U.S. 119 (1919). But contracts and agreements pertaining to the original construction of vessels are not within admiralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393 (1858); North Pacific S.S. Co., 249 U.S. at 127. [Back to text]
921
New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 344 (1848). [Back to text]
922
Ex parte Easton, 95 U.S. 68 (1877). [Back to text]
923
Andrews v. Wall, 44 U.S. (3 How.) 568 (1845). [Back to text]
924
Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 412, 415, 418 (1825); The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 1830) (Justice Story). [Back to text]
925
Ex parte Easton, 95 U.S. 68, 72 (1877). See, for a clearing away of some conceptual obstructions to the principle, Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991). [Back to text]
926
E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); The Steamboat Orleans v. Phoebus, 36 U.S. (11 Pet.) 175, 183 (1837); The People’s Ferry Co. v. Joseph Beers, 61 U.S. (20 How.) 393, 401 (1858); New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26 (1870); Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 48 (1934). [Back to text]
927
Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961). [Back to text]
928
The City of Panama, 101 U.S. 453 (1880). Reversing a long-standing rule, the Court allowed recovery under general maritime law for the wrongful death of a seaman. Moragne v. States Marine Lines, 398 U.S. 375 (1970); Miles v. Apex Marine Corp., 498 U.S. 19 (1991). [Back to text]
929
The Raithmoor, 241 U.S. 166 (1916); Erie R.R. v. Erie Transportation Co., 204 U.S. 220 (1907). [Back to text]
930
L’Invincible, 14 U.S. (1 Wheat.) 238 (1816); In re Fassett, 142 U.S. 479 (1892). [Back to text]
931
East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858 (1986) (holding, however, that there is no products liability action in admiralty for purely economic injury to the product itself, unaccompanied by personal injury, and that such actions should be based on the contract law of warranty). [Back to text]
932
DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. Mass. 1815) (Justice Story); Philadelphia, W. & B. R.R. v. Philadelphia & Havre De Grace Steam Towboat Co., 64 U.S. (23 How.) 209, 215 (1859); The Plymouth, 70 U.S. (3 Wall.) 20, 33–34 (1865); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476 (1922). [Back to text]
933
Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972) (plane crash in which plane landed wholly fortuitously in navigable waters off the airport runway not in admiralty jurisdiction). However, so long as there is maritime activity and a general maritime commercial nexus, admiralty jurisdiction exists. Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on navigable waters is within admiralty jurisdiction); Sisson v. Ruby, 497 U.S. 358 (1990) (fire on pleasure boat docked at marina on navigable water). See also Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort claim arising out of damages allegedly caused by negligently driving piles from a barge into the riverbed, which weakened a freight tunnel that allowed flooding of the tunnel and the basements of numerous buildings along the Chicago River. The Court found that admiralty jurisdiction could be invoked. The location test was satisfied, because the barge, even though fastened to the river bottom, was a “vessel” for admiralty tort purposes; the two-part connection test was also satisfied, inasmuch as the incident had a potential to disrupt maritime commerce and the conduct giving rise to the incident had a substantial relationship to traditional maritime activity. [Back to text]
934
Thus, the courts have enforced seamen’s claims for maintenance and cure for injuries incurred on land. O’Donnell v. Great Lakes Co., 318 U.S. 36, 41–42 (1943). The Court has applied the doctrine of seaworthiness to permit claims by longshoremen injured on land because of some condition of the vessel or its cargo. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). But see Victory Carriers v. Law, 404 U.S. 202 (1971). In the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, Congress gave seamen, or their personal representatives, the right to seek compensation from their employers for personal injuries arising out of their maritime employment. Respecting who is a seaman for Jones Act purposes, see Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991). The rights exist even if the injury occurred on land. O’Donnell v. Great Lakes Co., 318 U.S. at 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946). In the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. § 740, Congress provided an avenue of relief for persons injured in themselves or their property by action of a vessel on navigable water which is consummated on land, as by the collision of a ship with a bridge. By the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1251, amending 33 U.S.C. §§ 901950, Congress broadened the definition of “navigable waters” to include in certain cases adjoining piers, wharfs, etc., and modified the definition of “employee” to mean any worker “engaged in maritime employment” within the prescribed meanings, thus extending the Act shoreward and changing the test of eligibility from “situs” alone to the “situs” of the injury and the “status” of the injured. [Back to text]
935
Jennings v. Carson, 8 U.S. (4 Cr.) 2 (1807); Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). [Back to text]
936
Thirty Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cr.) 191 (1815); The Siren, 80 U.S. (13 Wall.) 389, 393 (1871). [Back to text]
937
Hudson v. Guestier, 8 U.S. (4 Cr.) 293 (1808). [Back to text]
938
The Vengeance, 3 U.S. (3 Dall.) 297 (1796); Church v. Hubbard, 6 U.S. (2 Cr.) 187 (1804); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805). [Back to text]
939
The Brig Ann, 13 U.S. (9 Cr.) 289 (1815); The Sarah, 21 U.S. (8 Wheat.) 391 (1823); Maul v. United States, 274 U.S. 501 (1927). [Back to text]
940
Gilmore & Black, supra at 30–33. There are no longer separate rules of procedure governing admiralty, unification of civil admiralty procedures being achieved in 1966. 7 A J. Moore’s Federal Practice §§ .01 et seq (New York: 1971). [Back to text]
941
The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866); The Hine v. Trevor, 71 U.S. (4 Wall.) 555 (1867). But see Taylor v. Carryl, 61 U.S. (20 How.) 583 (1858). In Madruga v. Superior Court, 346 U.S. 556 (1954), the jurisdiction of a state court over a partition suit at the instance of the majority shipowners was upheld on the ground that the cause of action affected only the interest of the defendant minority shipowners and therefore was in personam. Justice Frankfurter’s dissent argued: “If this is not an action against the thing, in the sense which that has meaning in the law, then the concepts of a res and an in rem proceeding have an esoteric meaning that I do not understand.” Id. at 564. [Back to text]
942
After conferring “exclusive” jurisdiction in admiralty and maritime cases on the federal courts, § 9 of the Judiciary Act of 1789, 1 Stat. 77, added “saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it. . . .” Fixing the concurrent federal-state line has frequently been a source of conflict within the Court. Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). [Back to text]
943
The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1867). [Back to text]
944
C. J. Henry Co. v. Moore, 318 U.S. 133 (1943). [Back to text]
945
The Vengeance, 3 U.S. (3 Dall.) 297 (1796); The Schooner Sally, 6 U.S. (2 Cr.) 406 (1805); The Schooner Betsy, 8 U.S. (4 Cr.) 443 (1808); The Whelan, 11 U.S. (7 Cr.) 112 (1812); The Samuel, 14 U.S. (1 Wheat.) 9 (1816). If diversity of citizenship and the requisite jurisdictional amounts are present, a suitor may sue on the “law side” of the federal court and obtain a jury. Romero v. International Terminal Operating Co., 358 U.S. 354, 362–363 (1959). Jones Act claims, 41 Stat. 1007 (1920), 46 U.S.C. § 688, may be brought on the “law side” with a jury, Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924), and other admiralty claims joined with a Jones Act claim may be submitted to a jury. Romero, supra; Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). There is no constitutional barrier to congressional provision of jury trials in admiralty. Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851); Fitzgerald v. United States Lines Co., 374 U.S. 16, 20 (1963). [Back to text]
946
C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943). [Back to text]
947
23 U.S. (10 Wheat.) 428 (1825). On the political background of this decision, see 1 C. Warren, supra at 633–35. [Back to text]
948
The tidal ebb and flow limitation was strained in some of its applications. Peyroux v. Howard, 32 U.S. (7 Pet.) 324 (1833); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847). [Back to text]
949
5 Stat. 726 (1845). [Back to text]
950
53 U.S. (12 How.) 443 (1851). [Back to text]
951
Some of the early cases include The Magnolia, 61 U.S. (20 How.) 296 (1857); The Eagle, 75 U.S. (8 Wall.) 15 (1868); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871). The fact that the body of water is artificial presents no barrier to admiralty jurisdiction. Ex parte Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903). In United States v. Appalachian Power Co., 311 U.S. 377 (1940), it was made clear that maritime jurisdiction extends to include waterways which by reasonable improvement can be made navigable. “It has long been settled that the admiralty and maritime jurisdiction of the United States includes all navigable waters within the country.” Southern S.S. Co. v. NLRB, 316 U.S. 31, 41 (1942). [Back to text]
952
E.g., The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870); The Montello, 87 U.S. (20 Wall.) 430, 441–42 (1874). [Back to text]
953
United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818); Manchester v. Massachusetts, 139 U.S. 240 (1891). [Back to text]
954
The Steamer St. Lawrence, 66 U.S. (1 Bl.) 522, 527 (1862). [Back to text]
955
Janney v. Columbia Ins. Co., 23 U.S. (10 Wheat.) 411, 418 (1825); The Lottawanna, 88 U.S. (21 Wall.) 558, 576 (1875). [Back to text]
956
E.g., New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 47 U.S. (6 How.) 344 (1848); The Steamboat New York v. Rea, 59 U.S. (18 How.) 223 (1856); The China, 74 U.S. (7 Wall.) 53 (1868); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872); La Bourgogne, 210 U.S. 95 (1908). [Back to text]
957
The General Smith, 17 U.S. (4 Wheat.) 438 (1819); The Lottawanna, 88 U.S. (21 Wall.) 558 (1875) (enforcing state laws giving suppliers and repairmen liens on ships supplied and repaired). Another example concerns state-created wrongful death actions. The Hamilton, 207 U.S. 398 (1907). [Back to text]
958
E.g., Hazard’s Administrator v. New England Marine Ins. Co., 33 U.S. (8 Pet.) 557 (1834); The Belfast, 74 U.S. (7 Wall.) 624 (1869); American Steamboat Co. v. Chase, 83 U.S. (16 Wall.) 522 (1872); Quebec Steamship Co. v. Merchant, 133 U.S. 375 (1890); Belden v. Chase, 150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La Compagnie Gen. Transatlantique, 182 U.S. 406 (1901). [Back to text]
959
244 U.S. 205 (1917). The worker here had been killed, but the same result was reached in a case of nonfatal injury. Clyde S.S. Co. v. Walker, 244 U.S. 255 (1917). In Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918), the Jensen holding was applied to preclude recovery in a negligence action against the injured party’s employer under state law. Under The Osceola, 189 U.S. 158 (1903), the employee had a maritime right to wages, maintenance, and cure. [Back to text]
960
Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917). [Back to text]
961
244 U.S. at 216. [Back to text]
962
244 U.S. at 218. There were four dissenters: Justices Holmes, Pitney, Brandeis, and Clarke. The Jensen dissent featured such Holmesian epigrams as: “[J]udges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions,” id. at 221, and the famous statement supporting the assertion that supplementation of maritime law had to come from state law because “[t]he common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified. . . . It always is the law of some State. . . .” Id. at 222. [Back to text]
963
40 Stat. 395 (1917). [Back to text]
964
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). The decision was again 5-to-4 with the same dissenters. [Back to text]
965
42 Stat. 634 (1922). [Back to text]
966
Washington v. Dawson & Co., 264 U.S. 219, 228 (1924). Holmes and Brandeis remained of the four dissenters and again dissented. [Back to text]
967
44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901950. In 1984, the statute was renamed the Longshore and Harbor Workers’ Compensation Act. Pub. L. 98–426. [Back to text]
968
E.g., Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) (state direct action statute applies against insurers implicated in a marine accident); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955) (state statute determines effect of breach of warranty in marine insurance contract); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959); Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955) (federal rather than state law determines effect of exculpatory provisions in towage contracts); Kossick v. United Fruit Co., 365 U.S. 731 (1961) (state statute of frauds inapplicable to oral contract for medical care between seaman and employer). [Back to text]
969
Jensen, though much criticized, is still the touchstone of the decisional process in this area with its emphasis on the general maritime law. E.g., Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Askew v. American Waterways Operators, 411 U.S. 325, 337–44 (1973), the Court, in holding that the states may constitutionally exercise their police powers respecting maritime activities concurrently with the Federal Government, such as by providing for liability for oil spill damages, noted that Jensen and its progeny, although still possessing vitality, have been confined to their facts; thus, it is only with regard “to suits relating to the relationship of vessels, plying the high seas and our navigable waters, and to their crews” that state law is proscribed. Id. at 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980). [Back to text]
970
Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922); State Industrial Comm’n v. Nordenholt Corp., 259 U.S. 263 (1922); Miller’s Indemnity Underwriters v. Braud, 270 U.S. 59 (1926). The exception continued to be applied following enactment of the Longshoremen’s and Harbor Workers’ Compensation Act. See cases cited in Davis v. Department of Labor and Industries, 317 U.S. 249, 253–254 (1942). [Back to text]
971
Crowell v. Benson, 285 U.S. 22, 39 n.3 (1932). The internal quotation is from Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921). [Back to text]
972
§ 3(a), 44 Stat. 1424 (1927), 33 U.S.C. § 903(a). [Back to text]
973
Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Department of Labor and Industries, 317 U.S. 249, 252–53 (1942). [Back to text]
974
Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). The quoted phrases appear at id. at 253, 256. See also Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 (1959). [Back to text]
975
370 U.S. 114 (1962). In the 1972 amendments, § 2, 86 Stat. 1251, amending 33 U.S.C. § 903(a), Congress ratified Calbeck by striking out “if recovery . . . may not validly be provided by State law.” [Back to text]
976
86 Stat. 1251, § 2, amending 33 U.S.C. § 902. The Court had narrowly turned back an effort to achieve this result through construction in Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969). See also Victory Carriers v. Law, 404 U.S. 202 (1971). On the interpretation of the amendments, see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation Programs v. Perini, 459 U.S. 297 (1983). [Back to text]
977
41 Stat. 1007 (1920), 46 U.S.C. § 688. For the prior-Jones Act law, see The Osceola, 189 U.S. 158 (1903). [Back to text]
978
“Cases of Admiralty and Maritime Jurisdiction,” supra. [Back to text]
979
Unseaworthiness “is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. . . . [T]he owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care.” Mitchell v. Trawler Racer, 362 U.S. 539, 549 (1960). [Back to text]
980
Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also Mitchell v. Trawler Racer, 362 U.S. 539 (1960); Michalic v. Cleveland Tankers, 364 U.S. 325 (1960); Waldron v. Moore-McCormack Lines, 386 U.S. 724 (1967). [Back to text]
981
Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347 U.S. 396 (1954); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); But see Usner v. Luckenback Overseas Corp., 400 U.S. 494 (1971); Victory Carriers v. Law, 404 U.S. 202 (1971). [Back to text]
982
Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). [Back to text]
983
86 Stat. 1263, § 18, amending 33 U.S.C. § 905. On the negligence standards under the amendment, see Scindia Steam Navigation Co., v. De Los Santos, 451 U.S. 156 (1981). [Back to text]
984
119 U.S. 199 (1886). Subsequent cases are collected in Moragne v. States Marine Lines, 398 U.S. 375 (1970). [Back to text]
985
Moragne v. States Marine Lines, 398 U.S. 375 (1970). [Back to text]
986
41 Stat. 1007 (1920). 46 U.S.C. § 688. Recovery could be had if death resulted from injuries because of negligence but not from unseaworthiness. [Back to text]
987
41 Stat. 537 (1920), 46 U.S.C. §§ 761et seq. The Act applies to deaths caused by negligence occurring on the high seas beyond a marine league from the shore of any state. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969), a unanimous Court held that this Act did not apply in cases of deaths on the artificial islands created on the continental shelf for oil drilling purposes but that the Outer Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C. §§ 1331et seq., incorporated the laws of the adjacent state, so that Louisiana law governed. See also Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981). However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), the Court held that the Act is the exclusive wrongful death remedy in the case of OCS platform workers killed in a helicopter crash 35 miles off shore en route to shore from a platform. [Back to text]
988
44 Stat. 1424 (1927), as amended, 33 U.S.C. §§ 901950. [Back to text]
989
Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Just v. Chambers, 312 U.S. 383 (1941); Levinson v. Deupree, 345 U.S. 648 (1953). [Back to text]
990
358 U.S. 588 (1959). [Back to text]
991
Justice Brennan, joined by Chief Justice Warren and Justices Black and Douglas, argued that the extent of the duties owed the decedent while on board ship should be governed by federal maritime law, though the cause of action originated in a state statute, just as would have been the result had decedent survived his injuries. See also United N.Y. & N.J. Sandy Hooks Pilot Ass’n v. Halecki, 358 U.S. 613 (1959). [Back to text]
992
361 U.S. 314 (1960). The four Tungus dissenters joined two of the Tungus majority solely “under compulsion” of the Tungus ruling; the other three majority Justices dissented on the ground that application of the state statute unacceptably disrupted the uniformity of maritime law. [Back to text]
993
379 U.S. 148 (1964). The decision was based on dictum in Lindgren v. United States, 281 U.S. 38 (1930), to the effect that the Jones Act remedy was exclusive. [Back to text]
994
398 U.S. 375 (1970). [Back to text]
995
398 U.S. at 396 n.12. For development of the law under Moragne, see Sea-Land Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex Marine Corp., 498 U.S. 19 (1990); and Norfolk Shipbuilding and Drydock Co. v. Garris, 532 U.S. 811 (2001) (maritime cause of action for death caused by violation of the duty of seaworthiness is equally applicable to death resulting from negligence). But, in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), a case involving a death in territorial waters from a jet ski accident, the Court held that Moragne does not provide the exclusive remedy in cases involving the death in territorial waters of a “nonseafarer”—a person who is neither a seaman covered by the Jones Act nor a longshore worker covered by the LHWCA. [Back to text]
996
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1274 (1833), (emphasis in original). [Back to text]
997
Dugan v. United States, 16 U.S. (3 Wheat.) 172 (1818). [Back to text]
998
United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe, 127 U.S. 338 (1888); United States v. Bell Telephone Co., 128 U.S. 315 (1888). Whether without statutory authorization the United States may sue to protect the constitutional rights of its citizens has occasioned conflict. Compare United States v. Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. Brittain, 319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979), and United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). The result in Mattson and Solomon was altered by specific authorization in the Civil Rights of Institutionalized Persons Act, Pub. L. 96–247, 94 Stat. 349 (1980), 42 U.S.C. §§ 1997et seq. See also United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980) (no standing to sue to correct allegedly unconstitutional police practices). [Back to text]
999
28 U.S.C. § 1345. By virtue of the fact that the original jurisdiction of the Supreme Court extends only to those cases enumerated in the Constitution, jurisdiction over suits brought by the United States against persons or corporations is vested in the lower federal courts. Suits by the United States against a state may be brought in the Supreme Court under its original jurisdiction, 28 U.S.C. § 1251(b)(2), although such suits may also be brought in the district courts. Case v. Bowles, 327 U.S. 92, 97 (1946). [Back to text]
1000
United States v. San Jacinto Tin Co., 125 U.S. 273 (1888). [Back to text]
1001
United Steelworkers v. United States, 361 U.S. 39, 43–44 (1960), citing In re Debs, 158 U.S. 564 (1895). [Back to text]
1002
United States v. Raines, 362 U.S. 17, 27 (1960), upholding jurisdiction of the federal court over an action to enjoin state officials from discriminating against African-American citizens seeking to vote in state elections. See also Oregon v. Mitchell, 400 U.S. 112 (1970), in which two of the four cases considered were actions by the United States to enjoin state compliance with the Voting Rights Act Amendments of 1970. [Back to text]
1003
136 U.S. 211 (1890). [Back to text]
1004
United States v. Texas, 143 U.S. 621 (1892). [Back to text]
1005
143 U.S. at 642–46. This suit, it may be noted, was specifically authorized by the Act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, § 25. See also United States v. Louisiana, 339 U.S. 699, 701–02 (1950). [Back to text]
1006
United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against a state by the United States, see United States v. Michigan, 190 U.S. 379 (1903). [Back to text]
1007
295 U.S. 463 (1935). [Back to text]
1008
United States v. Utah, 283 U.S. 64 (1931). [Back to text]
1009
United States v. California, 332 U.S. 19 (1947). [Back to text]
1010
United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). See also United States v. Maine, 420 U.S. 515 (1975). [Back to text]
1011
2 U.S. (2 Dall.) 419, 478 (1793). [Back to text]
1012
19 U.S. (6 Wheat.) 264, 412 (1821). [Back to text]
1013
33 U.S. (8 Pet.) 436, 444 (1834). [Back to text]
1014
United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437–439 (1879). It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). The reason for such immunity, as stated by Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is that “there can be no legal right as against the authority that makes the law on which the right depends.” See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority—which is clearly an agency of the United States— partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922); Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other government-owned corporations have been held liable for their wrongful acts. 39 Ops. Atty. Gen. 559, 562 (1938). [Back to text]
1015
106 U.S. 196 (1882). [Back to text]
1016
Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act provision that “the United States shall be liable for costs the same as a private person” insufficient to waive immunity from awards of interest). The result in Shaw was overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. 102–166, 106 Stat. 1079, § 113, amending 42 U.S.C. § 2000e–16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). Immunity of the United States for the negligence of its employees was waived, again with limitations, in the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671–2680. Other waivers of sovereign immunity include Pub. L. 94–574, § 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits for money damages); Pub. L. 87–748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361 (giving district courts jurisdiction of mandamus actions to compel an officer or employee of the United States to perform a duty owed to plaintiff); Westfall Act, 102 Stat. 4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially), and the Equal Access to Justice Act, 5 U.S.C. § 504,28 U.S.C. § 2412 (making United States liable for awards of attorneys’ fees in some instances when it loses an administrative proceeding or a lawsuit). See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC’s “sue-and-be-sued” clause waives sovereign immunity, but a Bivens implied cause of action for constitutional torts cannot be used directly against FSLIC). [Back to text]
1017
United States v. New York Rayon Co., 329 U.S. 654 (1947). [Back to text]
1018
United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). [Back to text]
1019
Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a state to acquire a right of way over lands owned by the United States and held in trust for Indian allottees. See also Block v. North Dakota, 461 U.S. 273 (1983). [Back to text]
1020
Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943). [Back to text]
1021
United States v. Lee, 106 U.S. 196, 207–208 (1882). The Tucker Act, 20 U.S.C. § 1346(a)(2), now displaces the specific rule of the case, as it provides jurisdiction against the United States for takings claims. [Back to text]
1022
204 U.S. 331 (1907). [Back to text]
1023
Louisiana v. McAdoo, 234 U.S. 627, 628 (1914). [Back to text]
1024
162 U.S. 255 (1896). Justice Gray endeavored to distinguish between this case and Lee. Id. at 271. It was Justice Gray who spoke for the dissenters in Lee. [Back to text]
1025
Land v. Dollar, 330 U.S. 731, 737 (1947). [Back to text]
1026
Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S.. 382 (1939); Mine Safety Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 185 U.S. 373 (1902). [Back to text]
1027
Cunningham v. Macon & Brunswick R.R., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). [Back to text]
1028
Larson, 337 U.S. at 708. Justice Frankfurter’s dissent also contains a useful classification of immunity cases and an appendix listing them. [Back to text]
1029
330 U.S. 731, 735 (1947) (emphasis added). [Back to text]
1030
337 U.S. 682 (1949). [Back to text]
1031
337 U.S. at 689–97. [Back to text]
1032
337 U.S. at 701–02. This rule was applied in Goldberg v. Daniels, 231 U.S. 218 (1913), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. This suit was held to be against the United States. See also Perkins v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government’s authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In Larson, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 (1926), but in effect overruled it. Goltra involved an attempt of the government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass. Also decided in harmony with the Larson decision are the following, wherein the suit was barred as being against the United States: (1) Malone v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a Forest Service Officer from land occupied by him in his official capacity under a claim of title from the United States; and (2) Hawaii v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against the Director of the Budget for an order directing him to determine whether a parcel of federal land could be conveyed to that state. In Dugan v. Rank, 372 U.S. 609 (1963), the Court ruled that inasmuch as the storing and diverting of water at the Friant Dam resulted, not in a trespass, but in a partial, although a casual day-by-day, taking of water rights of claimants along the San Joaquin River below the dam, a suit to enjoin such diversion by Federal Bureau of Reclamation officers was an action against the United States, for grant of the remedy sought would force abandonment of a portion of a project authorized and financed by Congress, and would prevent fulfillment of contracts between the United States and local Water Utility Districts. Damages were recoverable in a suit under the Tucker Act. 28 U.S.C. § 1346(a). [Back to text]
1033
337 U.S. at 703–04. Justice Frankfurter, dissenting, would have applied the rule of the Lee case. See Pub. L. 94–574, 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (action seeking relief, except for money damages, against officer, employee, or agency not to be dismissed as action against United States). [Back to text]
1034
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709–710 (1949) (dissenting opinion). [Back to text]
1035
Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 234 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10 (1896); International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904). [Back to text]
1036
Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939) (holding that one threatened with direct and special injury by the act of an agent of the government under a statute may challenge the constitutionality of the statute in a suit against the agent). [Back to text]
1037
Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 606 (1918). [Back to text]
1038
United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947). See also Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959). Butz v. Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980); Harlow v. Fitzgerald, 457 U.S. 800 (1982). [Back to text]
1039
306 U.S. 381 (1939). [Back to text]
1040
FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a congressional waiver of immunity in the case of a governmental corporation did not mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity. [Back to text]
1041
United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940). [Back to text]
1042
Warren, The Supreme Court and Disputes Between States, 34 BULL. OF WILLIAM AND MARY, NO. 4 (1940), 7–11. For a more comprehensive treatment of background as well as the general subject, see C. WARREN, THE SUPREME COURT AND THE SOVEREIGN STATES (1924). [Back to text]
1043
Id. at 13. However, only three such suits were brought in this period, 1789–1849. During the next 90 years, 1849–1939, at least twenty-nine such suits were brought. Id. at 13, 14. [Back to text]
1044
New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1931). [Back to text]
1045
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838). [Back to text]
1046
37 U.S. at 736–37. [Back to text]
1047
37 U.S. at 737. Chief Justice Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Id. at 752–53. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two states, to which neither state is a party, does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsey, 3 U.S. (3 Dall.) 411 (1799). For recent boundary cases, see United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v. Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336 (1990); Mississippi v. Louisiana, 506 U.S. 73 (1992). [Back to text]
1048
180 U.S. 208 (1901). [Back to text]
1049
E.g. Montana v. Wyoming, 563 U.S. ___, No. 137, Orig., slip op. (2011). [Back to text]
1050
206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980). [Back to text]
1051
283 U.S. 336 (1931). [Back to text]
1052
283 U.S. at 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had jurisdiction of a suit by a state against citizens of other states to abate a nuisance allegedly caused by the dumping of mercury into streams that ultimately run into Lake Erie, but it declined to permit the filing because the presence of complex scientific issues made the case more appropriate for first resolution in a district court. See also Texas v. New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 (1983). [Back to text]
1053
South Dakota v. North Carolina, 192 U.S. 286 (1904). [Back to text]
1054
Virginia v. West Virginia, 220 U.S. 1 (1911). [Back to text]
1055
Arkansas v. Texas, 346 U.S. 368 (1953). [Back to text]
1056
Kentucky v. Indiana, 281 U.S. 163 (1930). [Back to text]
1057
Texas v. Florida, 306 U.S. 398 (1939). In California v. Texas, 437 U.S. 601 (1978), the Court denied a state leave to file an original action against another state to determine the contested domicile of a decedent for death tax purposes, with several Justices of the view that Texas v. Florida had either been wrongly decided or was questionable. But, after determining that an interpleader action by the administrator of the estate for a determination of domicile was barred by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court over dissent permitted filing of the original action. California v. Texas, 457 U.S. 164 (1982). [Back to text]
1058
Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over strong dissent, relied on this case in permitting suit contesting a tax imposed on natural gas, the incidence of which fell on the suing state’s consuming citizens. And, in Wyoming v. Oklahoma, 502 U.S. 437 (1992), the Court permitted a state to sue another to contest a law requiring that all in-state utilities burn a mixture containing at least 10% in-state coal, the plaintiff state having previously supplied 100% of the coal to those utilities and thus suffering a loss of coal-severance tax revenues. [Back to text]
1059
379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 U.S. 206 (1972). [Back to text]
1060
37 U.S. (12 Pet.) 657 (1838). [Back to text]
1061
19 U.S. (6 Wheat.) 264 (1821). [Back to text]
1062
19 U.S. at 378. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 79–80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); Pennsylvania v. New York, 407 U.S. 206 (1972). [Back to text]
1063
291 U.S. 286 (1934). The Court in recent years, with a significant caseload problem, has been loath to permit filings of original actions where the parties might be able to resolve their disputes in other courts, even in cases in which the jurisdiction over the particular dispute is exclusively original. Arizona v. New Mexico, 425 U.S. 794 (1976) (dispute subject of state court case brought by private parties); California v. West Virginia, 454 U.S. 1027 (1981). But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the Court’s reluctance to exercise original jurisdiction ran afoul of the “uncompromising language” of 28 U.S.C. § 1251(a) giving the Court “original and exclusive jurisdiction” of these kinds of suits. [Back to text]
1064
Massachusetts v. Missouri, 308 U.S. 1, 15–16, (1939), citing Florida v. Mellon, 273 U.S. 12 (1927). [Back to text]
1065
306 U.S. 398 (1939). [Back to text]
1066
308 U.S. at 17, citing Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277, 286 (1911), and Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 394 (1938). See also New Hampshire v. Louisiana and New York v. Louisiana, 108 U.S. 76 (1883), which held that a state cannot bring a suit on behalf of its citizens to collect on bonds issued by another state, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a state cannot sue another to prevent maladministration of quarantine laws. [Back to text]
1067
308 U.S. at 17, 19. [Back to text]
1068
The various decisions in Virginia v. West Virginia are found at 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918). [Back to text]
1069
246 U.S. at 591. [Back to text]
1070
246 U.S. at 600. [Back to text]
1071
246 U.S. at 601. [Back to text]
1072
C. WARREN, THE SUPREME COURT AND SOVEREIGN STATES 78–79 (1924). [Back to text]
1073
Kansas v. Nebraska, 574 U.S. ___, No. 126, Orig., slip op. at 14–17 (2015). Equity is “the system of law or body of principles originating in the English Court of Chancery.” BLACKS LAW DICTIONARY 656 (10th ed. 2014). Persons who sought equitable relief “sought to do justice in cases for which there was no adequate remedy at common law,” A.H. MANCHESTER, MODERN LEGAL HISTORY OF ENGLAND AND WALES, 1750–1950 135–36 (1980), i.e., cases in which the English courts of law could afford no relief to a plaintiff. While eventually courts of law and courts providing equitable relief merged into a single court in most jurisdictions, an equitable remedy refers to a remedy that equity courts would have historically granted. See 1 DAN B. DOBBS, DOBBS LAW OF REMEDIES: DAMAGES —EQUITY —RESTITUTION § 2.1(2), at 59–61 (2d ed. 1993). Compensatory damages are a classic “legal” remedy, whereas an injunction is a classic “equitable” remedy. See RICHARD L. HASEN, REMEDIES 141 (2d ed. 2010). [Back to text]
1074
See Kansas, slip op. at 8 (quoting Texas v. New Mexico, 462 U.S. 554, 567 (1983)). [Back to text]
1075
Id. [Back to text]
1076
Id. [Back to text]
1077
2 U.S. (2 Dall.) 419 (1793). [Back to text]
1078
See the discussion under the Eleventh Amendment. [Back to text]
1079
Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926). [Back to text]
1080
Pennsylvania v. Quicksilver Co., 77 U.S. (10 Wall.) 553 (1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). [Back to text]
1081
Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). [Back to text]
1082
19 U.S. (6 Wheat.) 264, 398–99 (1821). [Back to text]
1083
Pennsylvania v. Quicksilver Mining Co., 77 U.S. (10 Wall.) 553 (1871). [Back to text]
1084
California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902). [Back to text]
1085
19 U.S. (6 Wheat.) at 398–99. [Back to text]
1086
127 U.S. 265 (1888). [Back to text]
1087
2 U.S. (2 Dall.) 419, 431–32 (1793). [Back to text]
1088
127 U.S. at 289–300. [Back to text]
1089
Pennsylvania v. Wheeling & B. Bridge Co., 54 U.S. (13 How.) 518, 559 (1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); Georgia v. Evans, 316 U.S. 159 (1942). [Back to text]
1090
South Dakota v. North Carolina, 192 U.S. 286 (1904). [Back to text]
1091
New Hampshire v. Louisiana, 108 U.S. 76 (1883). [Back to text]
1092
Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938). [Back to text]
1093
220 U.S. 277 (1911). [Back to text]
1094
324 U.S. 439 (1945). [Back to text]
1095
324 U.S. at 447–48 (quoting from Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), in which the state was permitted to sue as parens patriae to enjoin the defendant from emitting noxious gases from its works in Tennessee which caused substantial damage in nearby areas of Georgia). In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982), the Court attempted to enunciate the standards by which to recognize permissible parens patriae assertions. See also Maryland v. Louisiana, 451 U.S. 725, 737–39 (1981). [Back to text]
1096
Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson dissented. [Back to text]
1097
In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the Court, five-to-two, held that the state could not maintain an action for damages parens patriae under the Clayton Act and limited the previous case to instances in which injunctive relief is sought. Hawaii had brought its action in federal district court. The result in Hawaii was altered by Pub. L. 94–435, 90 Stat. 1383 (1976), 15 U.S.C. §§ 15cet seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), reduced the significance of the law. [Back to text]
1098
Most of the cases, but see Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), concern suits by one state against another. Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). Although recognizing that original jurisdiction exists when a state sues a political subdivision of another state or a private party as parens patriae for its citizens and on its own proprietary interests to abate environmental pollution, the Court has held that, because of the technical complexities of the issues and the inconvenience of adjudicating them on its original docket, the cases should be brought in federal district court under federal question jurisdiction founded on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 (1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The Court had earlier thought the cases must be brought in state court. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971). [Back to text]
1099
262 U.S. 447, 486 (1923). [Back to text]
1100
383 U.S. 301 (1966). The state sued the Attorney General of the United States as a citizen of New Jersey, thus creating the requisite jurisdiction, and avoiding the problem that the States may not sue the United States without its consent. Minnesota v. Hitchcock, 185 U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. United States, 204 U.S. 331 (1907). The expedient is, of course, the same device as is used to avoid the Eleventh Amendment prohibition against suing a state by suing its officers. Ex parte Young, 209 U.S. 123 (1908). [Back to text]
1101
79 Stat. 437 (1965), 42 U.S.C. §§ 1973et seq. [Back to text]
1102
The Court first held that neither of these provisions were restraints on what the Federal Government might do with regard to a state. It then added: “Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parents patriae of every American citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). [Back to text]
1103
The Court did not indicate on what basis South Carolina could raise the issue. At the beginning of its opinion, the Court noted that “[o]riginal jurisdiction is founded on the presence of a controversy between a State and a citizen of another State under Art. III, § 2, of the Constitution. See Georgia v. Pennsylvania R. Co., 324 U.S. 439.” 383 U.S. at 307. But surely this did not refer to that case’s parens patriae holding. [Back to text]
1104
See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 U.S. 707 (1944). See especially Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867). In Oregon v. Mitchell, 400 U.S. 112 (1970), four original actions were consolidated and decided. Two were actions by the United States against States, but the other two were suits by States against the Attorney General, as a citizen of New York, seeking to have the Voting Rights Act Amendments of 1970 voided as unconstitutional. South Carolina v. Katzenbach was uniformly relied on by all parties as decisive of the jurisdictional question, and in announcing the judgment of the Court Justice Black simply noted that no one raised jurisdictional or justiciability questions. Id. at 117 n.1. See also id. at 152 n.1 (Justice Harlan concurring in part and dissenting in part); South Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 U.S. 367 (1984). [Back to text]
1105
Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79, 80–93. [Back to text]
1106
Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 (1928). [Back to text]
1107
1 Stat. 78, 11. The statute also created alienage jurisdiction of suits between a citizen of a state and an alien. See Holt, The Origins of Alienage Jurisdiction, 14 OKLA. CITY L. REV. 547 (1989). Early versions of the statute conferred diversity jurisdiction only when the suit was between a citizen of the state in which the suit was brought and a citizen of another state. The Act of March 3, 1875, § 1. 18 Stat. 470, first established the language in the present statute, 28 U.S.C. § 1332(a)(1), merely requiring diverse citizenship, so that a citizen of Maryland could sue a citizen of Delaware in federal court in New Jersey. The statute also sets a threshold amount at controversy for jurisdiction to attach; the jurisdictional amount was as low as $3,000 in 1958, but set at $75,000 in 1996. 28 U.S.C. § 1332(a). Snyder v. Harris, 394 U.S. 332 (1969), held that in a class action in diversity the individual claims could not be aggregated to meet the jurisdictional amount. Zahn v. International Paper Co., 414 U.S. 291 (1974), extended Snyder in holding that even though the named plaintiffs had claims of more than $10,000, the extant jurisdictional amount, they could not represent a class in which many of the members had claims for less than $10,000. A separate provision on diversity and class actions sets the jurisdictional amount at $5 million. 28 U.S.C. § 1332(d). [Back to text]
1108
Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61, 87 (1809). [Back to text]
1109
Summarized and discussed in C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 23 (4th ed. 1983); AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 99–110, 458–464 (1969). [Back to text]
1110
The principal proposals are those of the American Law Institute. Id. at 123–34. [Back to text]
1111
6 U.S. (2 Cr.) 445 (1805). [Back to text]
1112
6 U.S. at 453. [Back to text]
1113
City of New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). [Back to text]
1114
54 Stat. 143 (1940), as revised, 28 U.S.C. § 1332(d). [Back to text]
1115
337 U.S. 582 (1948). [Back to text]
1116
337 U.S. at 655 (Justice Frankfurter dissenting). [Back to text]
1117
The statute’s provision allowing citizens of Puerto Rico to sue in diversity was sustained in Americana of Puerto Rico v. Kaplus, 368 F.2d 431 (3d Cir. 1966), cert. denied, 386 U.S. 943 (1967), under Congress’s power to make rules and regulations for United States territories. Cf. Examining Bd. v. Flores de Otero, 426 U.S. 572, 580–597 (1976) (discussing congressional acts with respect to Puerto Rico). [Back to text]
1118
Chicago & N.W.R.R. v. Ohle, 117 U.S. 123 (1886). [Back to text]
1119
Sun Printing & Pub. Ass’n v. Edwards, 194 U.S. 377 (1904). [Back to text]
1120
Knox v. Greenleaf, 4 U.S. (4 Dall.) 360 (1802); Shelton v. Tiffin, 47 U.S. (6 How.) 163 (1848); Williamson v. Osenton, 232 U.S. 619 (1914). [Back to text]
1121
Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954). [Back to text]
1122
Shelton v. Tiffin, 47 U.S. (6 How.) 163 (1848). [Back to text]
1123
Williamson v. Osenton, 232 U.S. 619 (1914). [Back to text]
1124
Jones v. League, 59 U.S. (18 How.) 76 (1855). [Back to text]
1125
28 U.S.C. § 1332(a)(1). [Back to text]
1126
Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). [Back to text]
1127
In State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530–31 (1967), holding that congressional provision in the interpleader statute of minimal diversity, 28 U.S.C. § 1335(a)(1), was valid, the Court said of Strawbridge, “Chief Justice Marshall there purported to construe only ‘The words of the act of Congress,’ not the Constitution itself. And in a variety of contexts this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens.” Of course, the diversity jurisdictional statute not having been changed, complete diversity of citizenship, outside the interpleader situation, is still required. In class actions, only the citizenship of the named representatives is considered and other members of the class can be citizens of the same state as one or more of the parties on the other side. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); Snyder v. Harris, 394 U.S. 332, 340 (1969). [Back to text]
1128
In domestic relations cases and probate matters, the federal courts will not act, though diversity exists. Barber v. Barber, 62 U.S. (21 How.) 582 (1858); Ex parte Burrus, 136 U.S. 586 (1890); In re Broderick’s Will, 88 U.S. (21 Wall.) 503 (1875). These cases merely enunciated the rule, without justifying it; when the Court squarely faced the issue quite recently, it adhered to the rule, citing justifications. Ankenbrandt v. Richards, 504 U.S. 689 (1992). [Back to text]
1129
9 U.S. (5 Cr.) 61, 86 (1809). [Back to text]
1130
Commercial & Railroad Bank v. Slocomb, 39 U.S. (14 Pet.) 60 (1840). [Back to text]
1131
Strawbridge v. Curtiss, 7 U.S. (3 Cr.) 267 (1806). [Back to text]
1132
Louisville, C. & C.R.R. v. Letson, 43 U.S. (2 How.) 497, 558 (1844). [Back to text]
1133
United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 148 (1965), citing Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314 (1854). See Muller v. Dows, 94 U.S. 444 (1877); St. Louis & S.F. Ry. v. James, 161 U.S. 545 (1896); Carden v. Arkoma Associates, 494 U.S. 185, 189 (1990). [Back to text]
1134
28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 559 U.S. ___, No. 08–1107, slip op. (2010), the Court recounted the development of the rules on corporate jurisdictional citizenship in deciding that a corporation’s “principal place of business” under the statute is its “nerve center,” the place where the corporation’s officers direct, control, and coordinate the corporation’s activities. The jurisdictional statute additionally deems the place of an insured’s citizenship as an additional place of citizenship of an insurer being sued in a direct action case. [Back to text]
1135
In Terral v. Burke Constr. Co., 257 U.S. 529 (1922), the Court resolved two conflicting lines of cases and voided a state statute that required the cancellation of the license of a foreign corporation to do business in the state upon notice that the corporation had removed a case to a federal court. [Back to text]
1136
Chapman v. Barney, 129 U.S. 677 (1889); Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900); Thomas v. Board of Trustees, 195 U.S. 207 (1904); United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145 (1965); Carden v. Arkoma Associates, 494 U.S. 185 (1990). But compare People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), distinguished in Carden, 494 U.S. at 189–190, and Navarro Savings Ass’n v. Lee, 446 U.S. 458 (1980), distinguished in Carden, 494 U.S. at 191–192. [Back to text]
1137
Ch. XIX, § 11, 1 Stat. 78, sustained in Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). The present statute, 28 U.S.C. § 1359, provides that no jurisdiction exists in a civil action “in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.” See Kramer v. Caribbean Mills, 394 U.S. 823 (1969). [Back to text]
1138
Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. Gilmer, 129 U.S. 315 (1889). [Back to text]
1139
Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931). [Back to text]
1140
Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 293 (1908). [Back to text]
1141
E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909). [Back to text]
1142
276 U.S. 518 (1928). [Back to text]
1143
276 U.S. at 532 (joined by Justices Brandeis and Stone). Justice Holmes here presented his view that Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), had been wrongly decided, but he preferred not to overrule it, merely “not allow it to spread . . . into new fields.” 276 U.S. at 535. [Back to text]
1144
The section provided that “the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.” 1 Stat. 92. With only insubstantial changes, the section now appears as 28 U.S.C. § 1652. For a concise review of the entire issue, see C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS ch. 9 (4th ed. 1983). [Back to text]
1145
41 U.S. (16 Pet.) 1 (1842). The issue in the case was whether a pre-existing debt was good consideration for an indorsement of a bill of exchange so that the endorsee would be a holder in due course. [Back to text]
1146
41 U.S. at 19. The Justice concluded this portion of the opinion: “The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in great measure, not the law of a single country only, but of the commercial world. Nun eritalia lex Romae, alia Athenis; alia munc, alia posthac, sed et apud omnes gentes, et omni tempore una eademque lex obtenebit.” Id. The thought that the same law should prevail in Rome as in Athens was used by Justice Story in DeLovio v. Boit, 7 Fed. Cas. 418, 443 (No. 3776) (C.C.D. Mass. 1815). For a modern use, see United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966); 380 F.2d 385, 398 (5th Cir. 1967) (dissenting opinion). [Back to text]
1147
The expansions included Lane v. Vick, 44 U.S. (3 How.) 464 (1845) (wills); City of Chicago v. Robbins, 67 U.S. (2 Bl.) 418 (1862), and Baltimore & Ohio R.R. v. Baugh, 149 U.S. 368 (1893) (torts); Yates v. City of Milwaukee, 77 U.S. (10 Wall.) 497 (1870) (real estate titles and rights of riparian owners); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910) (mineral conveyances); Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847) (contracts); Lake Shore & M.S. Ry. v. Prentice, 147 U.S. 101 (1893). It was strongly contended that uniformity, the goal of Justice Story’s formulation, was not being achieved, in great part because state courts followed their own rules of decision even when prior federal decisions were contrary. Frankfurter, Distribution of Judicial Power Between Federal and State Courts, 13 CORNELL L.Q. 499, 529 n.150 (1928). Moreover, the Court held that, although state court interpretations of state statutes or constitutions were to be followed, federal courts could ignore them if they conflicted with earlier federal constructions of the same statute or constitutional provision, Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847), or if they had been rendered after the case had been tried in federal court, Burgess v. Seligman, 107 U.S. 20 (1883), thus promoting lack of uniformity. See also Gelpcke v. City of Debuque, 68 U.S. (1 Wall.) 175 (1865); Williamson v. Berry, 49 U.S. (8 How.) 495 (1850); Pease v. Peck, 59 U.S. (18 How.) 595 (1856); Watson v. Tarpley, 59 U.S. (18 How.) 517 (1856). [Back to text]
1148
Extensions of the scope of Tyson frequently were rendered by a divided Court over the strong protests of dissenters. E.g., Gelpcke v. City of Debuque, 68 U.S. (1 Wall.) 175 (1865); Lane v. Vick, 44 U.S. (3 How.) 463 (1845); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). In Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401–04 (1893), Justice Field dissented in an opinion in which he expressed the view that Supreme Court disregarding of state court decisions was unconstitutional, a view endorsed by Justice Holmes in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (dissenting opinion), and adopted by the Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Numerous proposals were introduced in Congress to change the rule. [Back to text]
1149
276 U.S. 518 (1928). B. & W. had contracted with a railroad to provide exclusive taxi service at its station. B. & Y. began operating taxis at the same station and B. & W. wanted to enjoin the operation, but it was a settled rule by judicial decision in Kentucky courts that such exclusive contracts were contrary to public policy and were unenforceable in court. Therefore, B. & W. dissolved itself in Kentucky and reincorporated in Tennessee, solely in order to create diversity of citizenship and enable itself to sue in federal court. It was successful and the Supreme Court ruled that diversity was present and that the injunction should issue. In Mutual Life Ins. Co. v. Johnson, 293 U.S. 335 (1934), the Court, in an opinion by Justice Cardozo, appeared to retreat somewhat from its extensions of Tyson, holding that state law should be applied, through a “benign and prudent comity,” in a case “balanced with doubt,” a concept first used by Justice Bradley in Burgess v. Seligman, 107 U.S. 20 (1883). [Back to text]
1150
304 U.S. 64 (1938). Judge Friendly has written: “Having served as the Justice’s [Brandeis’] law clerk the year Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. came before the Court, I have little doubt he was waiting for an opportunity to give Swift v. Tyson the happy dispatch he thought it deserved.” H. FRIENDLY, BENCHMARKS 20 (1967). [Back to text]
1151
C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 355 (4th ed. 1983). See Judge Friendly’s exposition, In Praise of Erie—And of the New Federal Common Law, in H. FRIENDLY, BENCHMARKS 155 (1967). [Back to text]
1152
304 U.S. at 157–64, 171 n.71. [Back to text]
1153
This result was obtained in retrial in federal court on the basis of Pennsylvania law. Tompkins v. Erie Railroad Co., 98 F.2d 49 (3d Cir. 1938), cert. denied, 305 U.S. 637 (1938). [Back to text]
1154
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 72–73 (1938), citing Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49 84–88 (1923). See C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 353 (4th ed. 1983). [Back to text]
1155
304 U.S. at 77–78 (footnote citations omitted). [Back to text]
1156
Congress had re-enacted § 34 as § 721 of the Revised Statutes, citing Swift v. Tyson in its annotation, thus presumably accepting the gloss placed on the words by that ruling. But note that Justice Brandeis did not think even the re-enacted statute was unconstitutional. 304 U.S. at 79–80. See H. FRIENDLY, BENCHMARKS 161–163 (1967). Perhaps a more compelling reason of policy was that stated by Justice Frankfurter rejecting for the Court a claim that the general grant of federal question jurisdiction to the federal courts in 1875 made maritime suits cognizable on the law side of the federal courts. “Petitioner now asks us to hold that no student of the jurisdiction of the federal courts or of admiralty, no judge, and none of the learned and alert members of the admiralty bar were able, for seventy-five years, to discern the drastic change now asserted to have been contrived in admiralty jurisdiction by the Act of 1875. In light of such impressive testimony from the past the claim of a sudden discovery of a hidden latent meaning in an old technical phrase is surely suspect.” “The history of archeology is replete with the unearthing of riches buried for centuries. Our legal history does not, however, offer a single archeological discovery of new, revolutionary meaning in reading an old judiciary enactment. [Here, the Justice footnotes: ‘For reasons that would take us too far afield to discuss, Erie Railroad Co. v. Tompkins, 304 U.S. 64, is no exception.’] The presumption is powerful that such a far-reaching, dislocating construction as petitioner would now have us find in the Act of 1875 was not uncovered by judges, lawyers or scholars for seventy-five years because it is not there.” Romero v. International Terminal Operating Co., 358 U.S. 354, 370–371 (1959). [Back to text]
1157
304 U.S. at 78. Justice Brandeis does not argue the constitutional issue and does not cite either provisions of the Constitution or precedent beyond the views of Justices Holmes and Field. Id. at 78–79. Justice Reed thought that Article III and the Necessary and Proper Clause might contain authority. Id. at 91–92 (Justice Reed concurring in the result). For a formulation of the constitutional argument in favor of the Brandeis position, see H. FRIENDLY, BENCHMARKS 167–171 (1967). See also Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 202, 208 (1956); Hanna v. Plumer, 380 U.S. 460, 471–472 (1965). [Back to text]
1158
304 U.S. at 79–80. [Back to text]
1159
304 U.S. at 78. Erie applies in equity as well as in law. Ruhlin v. New York Life Ins. Co., 304 U.S. 202 (1938). [Back to text]
1160
West v. American Tel. & Tel. Co., 311 U.S. 223 (1940); Six Companies of California v. Joint Highway District, 311 U.S. 180 (1940); Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940). [Back to text]
1161
Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940). [Back to text]
1162
King v. Order of Commercial Travelers of America, 333 U.S. 153 (1948); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956) (1910 decision must be followed in absence of confusion in state decisions since there were “no developing line of authorities that cast a shadow over established ones, no dicta, doubts or ambiguities . . . , no legislative development that promises to undermine the judicial rule”). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967). [Back to text]
1163
Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941); Huddleston v. Dwyer, 322 U.S. 232 (1944); Nolan v. Transocean Air Lines, 365 U.S. 293 (1961). [Back to text]
1164
Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 (1941); Griffin v. McCoach, 313 U.S. 498 (1941); Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953); Nolan v. Transocean Air Lines, 365 U.S. 293 (1961). [Back to text]
1165
Interestingly enough, 1938 marked what seemed to be a switching of positions vis-a-vis federal and state courts of substantive law and procedural law. Under Tyson, federal courts in diversity actions were free to formulate a federal common law, while they were required by the Conformity Act, § 5, 17 Stat. 196 (1872), to conform their procedure to that of the state in which the court sat. Erie then ruled that state substantive law was to control in federal court diversity actions, while by implication matters of procedure in federal court were subject to congressional governance. Congress authorized the Court to promulgate rules of civil procedure, 48 Stat. 1064 (1934), which it did in 1938, a few months after Erie was decided. 302 U.S. 783. [Back to text]
1166
Guaranty Trust Co. v. York, 326 U.S. 99 (1945). [Back to text]
1167
326 U.S. at 108–09. [Back to text]
1168
326 U.S. at 109. [Back to text]
1169
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) (state rule making unsuccessful plaintiffs liable for all expenses and requiring security for such expenses as a condition of proceeding applicable in federal court); Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (state statute barring foreign corporation not qualified to do business in the state applies in federal court); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949) (state rule determinative when an action is begun for purposes of statute of limitations applicable in federal court although a Federal Rule of Civil Procedure states a different rule). [Back to text]
1170
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958). [Back to text]
1171
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The decision was five-to-four, so that the precedent may or may not be stable for future application. [Back to text]
1172
E.g., Guaranty Trust Co. v. York, 326 U.S. 99 (1945). [Back to text]
1173
E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958). [Back to text]
1174
19 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4511, at 311 (2d ed. 1996). [Back to text]
1175
Hanna v. Plumer, 380 U.S. 460 (1965). [Back to text]
1176
Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 540 n.1 (2d Cir. 1956). The contrary view was implied in Levinson v. Deupree, 345 U.S. 648, 651 (1953), and by Justice Jackson in D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 466–67, 471–72 (1942) (concurring opinion). See Wichita Royalty Co. v. City National Bank, 306 U.S. 103 (1939). [Back to text]
1177
Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). See also National Metropolitan Bank v. United States, 323 U.S. 454 (1945); D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942); United States v. Standard Rice Co., 323 U.S. 106 (1944); United States v. Acri, 348 U.S. 211 (1955); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958); Bank of America Nat’l Trust & Savings Ass’n v. Parnell, 352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 (1966). But see O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994). [Back to text]
1178
United States v. Standard Oil Co., 332 U.S. 301 (1947). Federal law applies in maritime tort cases brought on the “law side” of the federal courts in diversity cases. Pope & Talbot v. Hawn, 346 U.S. 406 (1953). [Back to text]
1179
Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned with our foreign relations also are governed by federal law in diversity. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Federal common law also governs a government contractor defense in certain cases. Boyle v. United Technologies Corp., 487 U.S. 500 (1988). [Back to text]
1180
Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 376 U.S. 306 (1964). [Back to text]
1181
The quoted Brandeis phrase is in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). On the same day Erie was decided, the Court, in an opinion by Justice Brandeis, held that the issue of apportionment of the waters of an interstate stream between two states “is a question of ‘federal common law.’ ” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). On the matter, see Illinois v. City of Milwaukee, 406 U.S. 91 (1972). [Back to text]
1182
2 M. Farrand, supra at 162, 171, 184. [Back to text]
1183
Id. at 400–401. [Back to text]
1184
Id. at 431. [Back to text]
1185
See Pawlet v. Clark, 13 U.S. (9 Cr.) 292 (1815). Cf. City of Trenton v. New Jersey, 262 U.S. 182 (1923). [Back to text]
1186
The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938). [Back to text]
1187
Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934). [Back to text]
1188
292 U.S. at 330. [Back to text]
1189
But, in the absence of a federal question, there is no basis for jurisdiction between the subjects of a foreign state. Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). The Foreign Sovereign Immunities Act of 1976, Pub. L. 94–538, 90 Stat. 2891, amending various sections of title 28 U.S.C., comprehensively provided jurisdictional bases for suits by and against foreign states and appears as well to comprehend suits by an alien against a foreign state which would be beyond the constitutional grant. However, in the only case in which that matter has been an issue before it, the Court has construed the Act as creating a species of federal question jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983). [Back to text]
1190
The Sapphire, 78 U.S. (11 Wall.) 164, 167 (1871). [Back to text]
1191
78 U.S. at 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit or to continue one that has been brought. [Back to text]
1192
Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938), citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R.R., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign state is, of course, a political question. [Back to text]
1193
Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing Compania Espanola v. The Navemar, 303 U.S. 68 (1938), which held that where the Executive Department neither recognizes nor disallows the claim of immunity, the court is free to examine that question for itself. Under the latter circumstances, however, a claim that a foreign vessel is a public ship and immune from suit must be substantiated to the satisfaction of the federal court. [Back to text]
1194
Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938). Among other benefits which the Court cited as not extending to foreign states as litigant included exemption from costs and from giving discovery. Decisions were also cited to the effect that a sovereign plaintiff “should so far as the thing can be done, be put in the same position as a body corporate.” [Back to text]
1195
National Bank v. Republic of China, 348 U.S. 356, 361 (1955), citing 26 Dept. State Bull. 984 (1952), in which the Department “pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government.” [Back to text]
1196
Guaranty Trust Co. v. United States, 304 U.S. 126, 135, 137 (1938), citing precedents to the effect that a sovereign plaintiff “should be put in the same position as a body corporate.” [Back to text]
1197
30 U.S. (5 Pet.) 1, 16–20 (1831). [Back to text]
1198
Hodgson & Thompson v. Bowerbank, 9 U.S. (5 Cr.) 303 (1809). [Back to text]
1199
Jackson v. Twentyman, 27 U.S. (2 Pet.) 136 (1829); Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). [Back to text]
1200
Coal Co. v. Blatchford, 78 U.S. (11 Wall.) 172 (1871). See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens. [Back to text]
1201
Browne v. Strode, 9 U.S. (5 Cr.) 303 (1809). [Back to text]