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Problems Raised by Concurrency

FEDERAL-STATE COURT RELATIONS

Problems Raised by Concurrency

The Constitution established a system of government in which total power, sovereignty, was not unequivocally lodged in one level of government. In Chief Justice Marshall’s words, “our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union... .” Naturally, in such a system, “contests respecting power must arise.”1165 Contests respecting power may frequently arise in a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and state court refusal to comply with the judgments of federal tribunals; in part by statutes, with respect to the federal law generally enjoining federal-court interference with pending state court proceedings; and in part by self-imposed rules of comity and restraint, such as the abstention doctrine, all applied to avoid unseemly conflicts, which, however, have at times occurred.

1165 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204-05 (1824).

Subject to congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between States, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction.1166 Even within this last category, however, state courts, though unable to prejudice the harmonious operation and uniformity of general maritime law,1167 have concurrent jurisdiction over cases that occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law.1168 Review of state court decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest.1169 The first category of conflict surfaces here. The second broader category arises from the fact that state interests, actions, and wishes, all of which may at times be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed,1170 it became much more significant and likely when, in the wake of the Civil War, Congress bestowed general federal question jurisdiction on the federal courts,1171 enacted a series of civil rights statutes and conferred jurisdiction on the federal courts to enforce them,1172 and most important proposed and saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made an ever-increasing number of state actions subject to federal scrutiny.1173

1166 See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that state courts enjoy concurrent jurisdiction, and Congress must explicity or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-484 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have exclusive jurisdiction of the federal antitrust laws, even though Congress has not spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state courts have jurisdiction generally because federal law is law for them, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as can be seen that is not now the rule.

1167 Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

1168 Through the “saving to suitors” clause. 28 U.S.C. § 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560-561 (1954).

1169 Supra, “Organization of Courts, Tenure, and Compensation of Judges” and “Marbury v. Madison”. See 28 U.S.C. § 1257.

1170 E.g., by a suit against a State by a citizen of another State directly in the Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state courts where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77, and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. And for some unknown reason, Congress passed in 1793 a statute prohibiting federal court injunctions against state court proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120-132 (1941).

1171 Act of March 3, 1875, 18 Stat. 470.

1172 Civil Rights Act of 1871, § 1, 17 Stat. 13. The authorization for equitable relief is now 42 U.S.C. § 1983, while jurisdiction is granted by 28 U.S.C. § 1343.

1173 See H. WECHSLER, THE NATIONALIZATION OF CIVIL LIBERTIES AND CIVIL RIGHTS (1969).

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Last modified: June 9, 2014