Complex Litigation Reform and Article III Jurisdiction


Linda S Mullenix

59 Fordham Law Review 169


The problems surrounding resolution of complex litigation have taken center stage in procedural debate. The many substantive and procedural issues involved in complex dispute resolution have engaged the attention of the academic community, the organized bar, the bench, institutional law-reform groups, judicial-administration research organizations and Congress. There can be little doubt that within the next decade Congress will enact legislation modifying, amending or completely revamping the procedures governing multiparty, multiforum cases. Discussion has now progressed beyond the identification of issues and problems to debate on the structure and validity of legislative reform.

Two structural issues will inform the debate over proposed complex litigation statutes: the scope of needed procedural revision and the technical details of implementing procedural changes. Similarly, two fundamental issues concerning the validity of legislative reform will dominate the debate: the impact of proposed innovations on federalism and the constitutionality of new jurisdictional provisions. Reformers have devoted considerable time and energy to drafting intricate statutory provisions dealing with the myriad problems of complex litigation. The sheer length and complexity of the proposed statutes is impressive. If the jurisdictional basis for such legislation is constitutionally questionable, however, the reform efforts may prove unavailing. Proposed inter-system transfer and consolidation schemes must withstand tenth amendment challenge. In addition, the expansion of federal court jurisdiction to accommodate complex litigation must withstand article III scrutiny. This Article addresses the latter problem.

Perhaps the most intellectually exciting aspect of the various complex litigation proposals is the effort to modify original and supplemental federal court jurisdiction through purely procedural statutes. Unlike most prior proposed modifications of federal court jurisdiction, recently proposed procedural recommendations do not supplement a substantive-law regulation of a national problem.

The complex litigation reformers have not adequately considered the constitutional basis for modifying existing jurisdiction or permitting new federal court jurisdiction for complex cases. The reformers would hang their complex litigation jurisdictional coat on either of two pegs: some version of the so-called “protective jurisdiction” of the federal courts, or a “commerce clause” theory of federal jurisdiction, a loose variant of protective jurisdiction. In both instances, the constitutional theories are neither well-structured nor well-met, and amount to little more than constitutional finesse.

This Article examines the constitutional basis for legislatively expanding, modifying or contracting federal court jurisdiction to encompass the resolution of complex litigation. Part I first describes these theories of federal court jurisdiction relating to complex litigation and then examines jurisdictional statutes proposed by the American Bar Association (“ABA”), American Law Institute (“ALI”) and Congress. Predictably, the proposed statutes rely heavily on the scholarly commentary for their constitutional theory.

Part II discusses the main theories that may provide constitutional support for modifying federal court jurisdiction to accommodate the recent growth of complex litigation: (1) the protective jurisdiction theory, (2) the commerce clause theory and (3) the abstention corollary. This Article argues that each theory presents conceptual difficulties for the complex litigation reformers' legislative efforts.

Part III critiques the proposed jurisdictional statutes and the constitutional theories offered in support of modified federal court jurisdiction. It argues that the expansive jurisdictional statutes are troublesome in at least two respects. First, there is no historical precedent to support congressional expansion of article III arising under jurisdiction through a purely jurisdictional statute. Second, expanding the jurisdiction of federal courts merely to facilitate complex litigation may conflict with fundamental principles of federalism. Proposals suggesting expanded supplemental jurisdiction rely on similarly fragile arguments boot-strapped from original jurisdictional premises. In accomplishing the goal of federal jurisdiction over consolidated complex cases, the commerce clause is stretched to its outermost tenth amendment limits. Moreover, various recommendations for reducing federal court jurisdiction by reverse-removing or remanding certain complex cases to state forums rely on abstention analogies of dubious constitutional validity.

The central goal of complex litigation reform is to provide some central forum or forums for aggregative adjudication of similar or duplicative claims. The preceding points are not raised to undermine or defeat this central goal. Rather, this Article's principle purpose is to suggest certain weaknesses in the prevailing analysis and to encourage development of a sounder jurisdictional theory for aggregative procedure. Its secondary purpose is to induce reformers to state more clearly the nature of the complex litigation problem and to seek the best jurisdictional solution, as a matter of theory and practice.

If article III federal question jurisdiction cannot support expanded federal court access for complex cases, law reformers ought to acknowledge this limitation more candidly and not obscure the point in clouds of constitutional rhetoric. The reformers should realize that the best and perhaps only legislative means of providing the constitutional predicate of arising under jurisdiction for complex cases is through the simple expedient of federal tort legislation or statutory authorization of a judicially created federal common law of mass tort. The reformers should not retreat so quickly from these options.

Finally, if, by default, reform efforts ultimately rely on modifications of federal diversity jurisdiction, this jurisdictional basis ought to be clarified, especially in light of renewed and repeated proposals to abolish diversity jurisdiction. These tandem developments bring into sharper focus the prospect of specialized diversity jurisdiction for a special class of cases. Certainly, the possibility of a changed legal landscape requires better explanation and justification than current proposals offer.

Full Citation

Linda S. Mullenix, Complex Litigation Reform and Article III Jurisdiction, 59 Fordham Law Review 169 (1990).