Waste Not, Wait Not--A Consideration of Federal and State Jurisdiction
Waste Not, Wait Not--A Consideration of Federal and State Jurisdiction
Lawrence H. Cooke 0 1
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1 Lawrence H. Cooke, Waste Not, Wait Not--A Consideration of Federal and State Jurisdiction , 49 Fordham L. Rev. 895 (1981). Available at:
A paradox of our time is legal scarcity amidst plenty. It is
consistent with other incongruities such as momentous scientific
advances and an apparent dearth of natural resources, shocking rises in
violent crime in a society better educated than ever before, and an
inflationary spiral during economic recession. The rubber band
between demand and supply in almost any field-in the halls of
government, in the commercial marketplace, and in the circles of
culture-is now stretching in both directions. The recitation of
parallels could be almost endless.
I have always considered my Father as the personification of
virtue. He was a man of common sense and logic-with his feet always
solidly on the ground. A cobbler's son, he earned his way through life
and frequently referred to those who lived beyond their means as
having a "champagne appetite and a beer income." ' He frequently
recited a jingle that went something like "eat it up, clean it up, sew
it up, use it up" and ended with the proverb of "waste not, want
not." Having realized the inability of our material cornucopia to send
forth an endless supply and the futility of an economy of
extravagance, our mentality moves from expectations of profusion to those of
moderation to provide even the physical necessities of life. The same
course is generally outlined for government, in which programs and
appropriations are slashed at random, and the shadows of
Propositions 13 and 2 112 cast their pall over budgetary councils. 2 For the
judiciary in particular, there is an analogous imbalance. A constant
avalanche of litigation at the instigation of an endless horde of suitors
seriously threatens to engulf every apparatus of justice-the physical
facilities, the judicial and nonjudicial personnel, the tested methods
and protections, and indeed, the system of justice itself.
* Chief Judge of the State of New York. This article is adapted from the
Eleventh Annual John F. Sonnett Memorial Lecture, delivered by the Chief Judge
at the Fordham University School of Law on February 24, 1981.
1. This is an American variant of "Beggar's person and Emperor's mouth," 2 J.
Doolittle, A Vocabulary and Hand-Book of the Chinese Language, Romanized in the
Mandarin Dialect 189 (1872), also corrupted to "a beer salary and champagne
2. In a newspaper article it is stated that "[f]or the first time since Proposition
2 1/2 was approved in November amid predictions of fiscal chaos, city officials and
leaders of the banking and financial community here are talking openly about
bankruptcy for the city." Knight, Boston Prepares to Retrench As Tax Cut Drains
Treasury, N.Y. Times, Feb. 16, 1981, § A, at 10, col. 1. The plights of cities such as
New York and Cleveland are recalled.
In June 1980, Chief Justice Warren Burger, in welcoming remarks
to the American Law Institute (ALI), stated that "[i]t is surely plain
by now that both federal and state courts share the burdens of what
has been called 'the litigation explosion."'" He then added that
"[s]ome thoughtful observers tell us that this enormous expansion of
litigation is a result of the failure of the political processes to meet
the peoples' expectations."' Eleven years earlier, the ALI made a
study of allocation of jurisdiction and reported that "the present
inquiry has a special urgency because of the continually expanding
workload of the federal courts and the delay of justice resulting
therefrom." ' In the state courts of Minnesota, litigation has doubled
in the last ten years, but the number of judges has remained
constant. 6 Although the number of dispositions rose because of
efforts of the judges, the filing of indictments increased last year by
19.1% in New York City; the statewide increase was 13.3%.1
Recently, Laurence H. Tribe, Professor of Constitutional Law at
Harvard, wryly observed that "[i]f court backlogs grow at their present
rate, our children may not be able to bring a lawsuit to a conclusion
within their lifetime."8 President Carter expressed his concern to
the Los Angeles County Bar Association over this "interminable
delay- especially when delay itself can often mean victory on one
In September 1980, Senator Strom Thurmond, now Chairman of
the Senate Judiciary Committee, introduced a bill to establish a
Federal Jurisdiction Review and Revision Commission."0 The
Commission would study federal and state court jurisdiction, including
problems of substantive law, civil and criminal procedure, workload
of the courts, and case processing." Senator Thurmond stated that
he was introducing the legislation because of his "belief that our legal
system is drifting into a posture of blurring the jurisdiction between
the State and Federal courts" and that "[i]ncreasing caseloads in the
Federal courts reveal a trend which could eventually lead to a total
breakdown of traditional federalist principles as we know them." 32
Quoting Chief Justice Burger, he pointed out that in the past decade
Congress has enacted no less than seventy new statutes enlarging the
jurisdiction of federal courts; many of these statutes expand federal
jurisdiction to cover relief already available in state courts."
Any survey of federal and state court jurisdiction requires an
examination of the historical roots of our judicial systems and a
recognition of the interrelationship of the federal and state governments.
When the delegates to the Constitutional Convention gathered at
Philadelphia in 1787, they came from thirteen self-governing and
sovereign states. Each state had its own courts, structured with a
jurisprudence similar to that of England and flavored by a variety of
colonial prescriptions. There was no preexistent federal
superstructure or dual pattern of government such as the one that evolved from
the men at Philadelphia--"[m]ost of [whom] had been warned before
[leaving] home that they had no right to do more than amend the
Articles of Confederation." 14
The face of government changed with the adoption of the
Constitution. There emerged the intriguing concept of dual sovereignty,
federal and state, as applied to the central federal union and the
component states. The system was described as an "indestructible Union,
composed of indestructible States."" The judicial article of this new
Constitution provided for "one supreme Court, and ... such inferior
Courts as the Congress may from time to time ordain and establish" 16
and specified the cases to which the judicial power extends."
Therefore, a federal judicial sytem was erected alongside, or atop, the
individual state courts.
Another landmark was reached with the passage of the Judiciary
Act of 1789,1 by which Congress immediately exercised its power to
create inferior federal courts. The federal courts are courts of limited
jurisdiction, empowered to hear only such cases as are within the
judicial power of the United States as defined in the Constitution and
entrusted to them by a jurisdictional grant by Congress. In contrast,
each state has courts of general jurisdiction, and these courts enjoy a
12. 126 Cong. Rec. S12767 (daily ed. Sept. 17, 1980) (remarks of Sen.
(quoting Burger Speech, supra note 3. at S8965)
14. 1 D. Perkins & G. Van Deusen, The United States of America: A History
15. Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868).
16. U.S. Const. art. III, § I.
17. Id. § 2.
18. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
presumption of jurisdiction over a particular controversy that may be
overcome only by a strong showing to the contrary. Chief Justice
Burger, in reference to the ALI's study of the jurisdiction of state and
federal courts, 9 has observed that "[u]narticulated, but implicit, in
the Institute's study was that the state courts of this country are the
basic instrument of justice under our system, and this, of course, is
the heart of what we call federalism."20
Perhaps Senator Thurmond, in his observations on the "blurring"
of jurisdiction,2' determined that the line of demarcation was
becoming indistinct. From the tenor of his remarks, it is fair to assume that
he, like others, is disturbed by this trend. Others sense a de facto
"merging" and attempt to assess the consequences. The perimeters of
the expression "merger of state and federal courts" have not been
demarked. In the context employed, an "organizational merger" is
not suggested, but "merger" seems to imply that more and more the
state and federal courts, using similar methods, are plowing over the
same ground. In a 1977 address, Professor Dan Meador, then
Assistant Attorney General in the Office of Improvements in the
Administration of Justice, posed the question: "Are we heading for a merger
of federal and state courts? "I In intimating bases that might elicit
an affirmative response, Professor Meador cited "the opening of the
federal trial courts to some business which had always been handled
exclusively by the state courts"2 3 and a "growing uniformity in the
law being applied by both and in the rules of procedures being
used. - 2 Similarly, a 1979 report to the Conference of Chief Justices
from the Task Force on a State Court Improvement Act mentioned
"the Federal-State Partnership in the Delivery of Justice.", z
Awareness of the possibility of merger has not been confined to
these comments. Proposed changes in federal diversity jurisdiction
have inspired intense differences. State appellate judges have been
known to fume as determinations of their highest courts have been
invalidated at the hands of a single United States district court judge.
Federal judges have occasionally rankled when required to preside
over garden-variety tort and contract disputes instead of nationally
significant legal issues.
Consideration of whether state-federal judicial merger, viewed by
some as gradual but definite, is a reality reveals the dearth of
satisfactory empirical data on this subject. 6 Information would be required
to determine if merger exists and, as a preface, the notion of merger
must be defined to permit the experiential analysis to proceed. If
merger were found, a diagnosis could be made to determine whether
it is a problem, a blessing, or a mere phenomenon. Designs for
judicial or legislative treatment or surgery would follow. In any event,
the gathering of information would serve a propitious purpose either
in activating the highly motivated or in allaying their fears.
A fairly recent report of a Department of Justice Committee on
Revision of the Federal Judicial System broadcast the distress signal
that those courts "now face a crisis of overload, a crisis so serious that
it threatens the capacity of the federal system to function as it
should. . . .[I]t is therefore a crisis for the nation."' As for state
courts, in the twenty states providing full information for the decade
ending in 1976, there was an average caseload increase of 43% in the
trial courts of general jurisdiction. In those same states, the
average appellate caseload doubled during the same period.?
Obviously, this recital does not warrant complacency in approach
or inefficiency in operation. More money could provide more
courtrooms and more judicial personnel, but solid reliance on this
possibility is not warranted in the face of projected cuts in the federal budget
of over forty-one billion dollars and sizeable reductions in federal aid
to the states.' "[T]he 1980s [will be] a decade of limited resources
for courts .... "' Certainly waste can never be justified, and it is
submitted that there are certain areas in the jurisdictional allocation
between federal and state courts in which savings in time and effort
can be accomplished.
The framers of the Constitution drew a design in which the state
courts would be the primary guarantors of constitutional rights.V By
virtue of the federal supremacy clause,33 state courts were obliged to
apply federal law when applicable, but there was little to apply in the
early years. For the better part of the first century, the only
significant federal incursion into state court affairs was the infrequent
review by the United States Supreme Court of determinations by a
state's highest judicial body.
The Civil War and the subsequent Reconstruction aroused an
intense spirit of nationalism and produced demands for an expansion of
federal authority. From this atmosphere came the opening of the
federal nisi prius courts to judicial matters previously handled
exclusively by the state courts. In the late 1860's, Congress enacted
legislation that expanded the category of diversity cases that could be
removed to the federal courts 3 and, for the first time, authorized
writs of habeas corpus for persons detained by the states." The
fourteenth amendment was adopted, imposing upon the states as a matter
of federal law the responsibility for ensuring the rights of equal
protection and due process. In the succeeding decade, Congress granted
to federal trial courts the jurisdiction to entertain suits arising under
federal law;' Congress also enacted section 1983 of the Civil Rights
Act of 1871.' The full impact of these measures was realized, not in
their infancy, but in more recent years, and because of these
measures an enormous flood of cases has poured into the federal trial
system. Vast numbers of state criminal cases have been pervasively
reviewed and, as a result of Ex parte Young,' numerous state office
holders have been enjoined in the performance of official duties.
The concurrent jurisdiction enjoyed by both systems has long
aroused judicial and legislative concern. Proposals to reduce
duplications of jurisdiction include sharply limiting the scope of the diversity
jurisdiction of federal courts 3 9 and eliminating the federal question
jurisdiction of state courts. The underlying bases of these suggestions
have been the obvious merit of jurisdictional clarity and the
overriding desire to channel genuinely federal causes to federal courts and
genuinely state causes to state courts. Thus far, however, the
proclivity of attorneys for a choice of forum, a luxury we can no longer
afford, has prevailed over judicial efforts to secure jurisdictional
The most incessant abrader of judicial feelings may be the overturn
of the deliberative judgment of the highest court of a state by a single
federal trial court judge. The distinguished Chairman of the
34. Act of July 27, 1866, ch. 288, 14 Stat. 306 (current version at 28 U.S.C.
§ 1441 (1976)).
35. Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (current version at 28 U.S.C.
§ 2241(c)(3) (1976)).
36. Act of March 3, 1875, ch. 137, 18 Stat. 470 (current version at 28 U.S.C.
§ 1331 (1976)).
37. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13 (codified at 42 U.S.C. § 1983
38. 209 U.S. 123 (1908).
39. H.R. 2202, 96th Cong., 1st Sess. (1979).
Conference of Chief Justices, Robert J. Sheran, recently voiced the
opinion that such overturns not only incur the resentment of the
Conference members, but also are not in the interest of the system as
a whole. 4 Certain United States magistrates, with the consent of the
parties and when authorized by the district court in which he or she
serves, may even conduct any or all proceedings in civil matters
including habeas corpus and order the entry of judgment in the
cases. ' One proposal has been that all proceedings concerning state
criminal cases containing federal issues be routed to the United
States Courts of Appeals to avoid federal trial court review.
Once it has been determined that there should be a redistribution
of the caseload, the most difficulty will be encountered in isolating
those cases that should be diverted from their present situs. The
allocation should be based on sound reasoning. Judge Henry
Friendly, a member of the United States Court of Appeals for the
Second Circuit, would remove from federal forums not only diversity
jurisdiction, but also "state prisoner habeas corpus cases, numerous
criminal cases, and much federal question litigation such as
environmental protection, personal injury actions created by federal statutes,
and most section 1983 suits."' Although some view these proposals
as too drastic, the recommendations emanate from a respected
authority and deserve serious consideration. Moreover, it should be
noted that there are more than ten times as many general jurisdiction
state judges as there are federal district judges,'4 and state courts
handle well over 90% of the cases filed in any given year."
If our federal and state court dockets are as heavily laden as
reported, and if our systems are being taxed so that prompt and
wellconsidered justice is not being delivered to substantial segments of
society as claimed largely because of insufficient judicial personpower
and resources-and I do not doubt these premises-then the day
has arrived when there must be a survey of the systems and an
updated allocation of the jurisdiction between the federal and state
courts. This is not the time to tolerate a haphazard pattern of
jurisdiction that by its very intricacy breeds litigation with festering
procedural nuances. We can ill afford unnecessary duplication of judicial
effort. We are haunted by the specter of criminal cases that run the
full gamut of state trial and appellate levels only to start anew up the
40. Remarks of Hon. Robert J. Sheran, Chief Justice of the Supreme Court of
Minnesota, National Center for State Courts and Marshall-Wythe School of Law
Seminar on State Courts and Federalism in the 1980's, Williamsburg, Virginia (Jan.
41. 28 U.S.C. § 636(c) (Supp. 1979).
42. Sheran & Isaacman, State Cases Belong in State Courts, 12 Creighton L.
Rev. 1, 23-24 (1978).
43. Burger, supra note 20, at 12.
44. Hearings, supra note 25, at 140.
ladder of federal courts and then perhaps somewhere along the line
return to the beginning of the obstacle course. The process may take
In 1959, Chief Justice Warren said that "[i]t is essential that we
achieve a proper jurisdictional balance between federal and state
court systems, assigning to each system those cases most appropriate
in light of the basic principles of federalism.' In his speech to the
ALI, Chief Justice Burger raised for consideration the question
"whether the time [had] come for a broader reappraisal of the
allocation of jurisdiction" than that included in the 1969 ALI report.48
History furnishes instances of disdain for state judiciaries. For this
attitude there is no longer any justification. Recent years have seen
extraordinary efforts toward improvement. These include the
establishment of the National College for the Judiciary, the institution of state
training courses for judges, such as in New York State where yearly
training of five days is mandatory for all judges of courts of record,
the requirement of minimum qualifications in most states for judges
serving in courts with significant responsibilities, the initiation of
training in modern management methods provided by the Institute
for Court Management, the provision of technical assistance and
support programs by the National Center for State Courts, and highly
motivated efforts of both the American Judicature Society and the
American Bar Association.
People are looking for leadership, but those who seek a different
and more efficient utilization of judicial resources should expect
reaction ranging from confrontation to "no-holds-barred" opposition. In
the words of Arthur T. Vanderbilt, "[m]anifestly judicial reform is no
sport for the shortwinded or for lawyers who are afraid of temporary
defeat." 4 7 The responsibility for providing justice must be divided
between the federal and state court systems so they might realize
their maximum potential by utilizing their full capacity as efficaciously
as possible. As American citizens, we live under a government
committed "to establish justice," and a malfunction of our judicial
apparatus anywhere is reason for the disquiet of all of us. If we allot
spheres of jurisdiction in such a way as to avoid overlap and to free
judicial components from repetition of effort, then we will not
squander our judicial substance, and delay in the delivery of justice will be
reduced to a minimum. We can then say, "waste not, wait not."
There is much to be gained from the uniformity and stability
generated from a central authority. There is also advantage in
dis45. Burger, supra note 20, at 11 (quoting Address by Chief Justice Earl Warren,
American Law Institute (May 1959)).
46. Burger Speech, supra note 3, at S8966.
47. E. Gerhart, Arthur T. Vanderbilt: The Compleat Counsellor
persed authority that can operate with more accommodation. We can
alter our structures, by modernization, by an infusion of capital, and
by innovation, but in the end, the ultimate test is whether we have
afforded the citizenry a vehicle guided by competent and impartial
judges for the prompt and just resolution of their disputes, under
prevailing law applicable to all in equal measure.
3. Address by Chief Justice Warren E. Burger , American Law Institute (June 10, 1980 ), reprinted in 126 Cong. Rec. S8964, S8965 (daily ed. June 30 , 1980 ) [hereinafter cited as Burger Speech] .
5. ALI, Study of the Division of Jurisdiction Between State and Federal Courts 1 ( 1969 ).
6. Address by Hon. Robert J. Sheran , Chief Justice of the Minnesota Supreme Court , State/Federal Judicial Council Meeting in Brainerd, Minnesota (Aug . 19 - 21 , 1980 ).
7. State of N.Y. Office of Court Administration, Press Release (March 18 , 1981 ).
8. Time , Aug. 20 , 1979 , at 48 , 51 .
9. Address by President Jimmy Carter , Los Angeles County Bar Association, 100th Anniversary Luncheon (May 4 , 1978 ), reprinted in 64 A.B.A.J . 840 , 842 ( 1978 ).
10. S. 3123 , 96th Cong., 2d Sess., 126 Cong. Rec. S12768 (daily ed. Scpt. 17 , 1980 ).
Ii .Id.; see 126 Cong. Rec. S12767 (daily ed. Sept. 17 , 1980 ) (remarks of Sen . Thurmond).
19. See ALI , supra note 5 , at 7-8.
20. Burger , To Weaken Our State Courts Is To Destroy Federalism,Judges' J., Spring 1978 , at 11 , 12 .
21. See notes 10-13 supra and accompanying text.
22. Meador , Are We Headingfor a Merger of Federaland State Courts? , Judges' J., Spring 1978 , at 9.
23. Id . at 46.
24. Id . at 47.
25. Hearings on S. 2387 Before the Subcomm. on Jurisprudenceand Governmental Relations of the Senate Comm. on the Judiciary,96th Cong., 1st & 2d Sess . 151 ( 1979 -1980) [hereinafter cited as Hearings] .
26. Burger Speech, supra note 3 , at S8965. See also Fischer, Institutional Competency: Some Reflections on Judicial Activism in the Realm of Forum Allocation Between State and Federal Courts, 34 Miami L. Rev . 180 ( 1980 ).
27. U.S. Dep't of Justice, The Needs of the Federal Courts, Report of the Committee on Revision of the Federal Judicial System 1 ( 1977 ).
28. National Center of State Courts, State Court Caseload Statistics: Annual Report , 1976 , at 133- 38 ( 1980 ).
29. Id . at 50-51.
30. N.Y. Times, Feb. 22 , 1981 , § 1, at 1, col. 6.
31. Steelman , Options for Reducing Civil Volume and Delay: A Review and Analysis for the 1980's, State Ct . J., Fall 1980 , at 9, 10 .
32. See generally Hart, The Power of Congress to Limit the Jurisdictionof Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev . 1362 ( 1953 ).
33. U.S. Const. art. VI, § 2 .