An Alternative and Discretionary § 1367 (Symposium: A Reappraisal of the Supplemental Jurisdiction Statute, Title 28 U.S.C. 1367)


Supplemental jurisdiction is a concept too complex to be captured by complicated statutory drafting. That is my proposition. Or, somewhat more accurately, that is my tentative proposition, advanced for consideration alongside the elegant but intricate statutory proposals emerging from the American Law Institute\u27s Federal Judicial Code Revision Project. Professor John Oakley, the Reporter, knows more about supplemental jurisdiction, and has thought more deeply about it, than anyone. He has traveled many roads in continually refining proposed revisions of 28 U.S.C. § 1367. If anyone can capture all the nuances of supplemental jurisdiction in a statute, it is he, assisted by such aid as emerges from the consultative group, advisers, Council, and annual meeting. But the very virtuosity of the talents brought to bear suggests that the continuing need for refinement demonstrates the intransigent problems that defeat detailed codification. The nuances cannot all be captured by specific provisions that answer every question. The mediating forces of generality and discretion must be introduced. All of the drafts recognize this need. The remaining question is whether an intermediate blend of specification and discretion is the best answer. The answer depends on at least two things: the conceptualization chosen to extend subject-matterjurisdiction beyond the circumstances that initially define it, and the wisdom of federal judges in exercising discretion

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University of Michigan School of Law

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