60 N.Y.U. L. Rev. 543 (1985)
Jurisdiction and Discretion

handle is hein.journals/nylr60 and id is 557 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 60                        OCTOBER 1985                          NUMBER 4
JURISDICTION AND DISCRETION
DAVID L. SHAPIRO*
Must federal courts hear cases that are admittedly within their jurisdiction? For Pro-
fessor Shapiro the answer lies in our common law history, in present federal court
practices, and in ideals of federalism and comity. In this Article, Professor Shapiro
shows that notions of reasoned judicial discretion are embedded in the very concept of
jurisdiction. After surveying the range of existing discretion in legislative grants of
jurisdiction, he examines the extent of discretion at common law, rebutting the argu-
ment that only courts of equity were free to abstain from exercising jurisdiction. He
then articulates the 'rinciples ofpreference that should guide courts in their decision
whether to accept or exercise jurisdiction. Professor Shapiro concludes that discretion
is necessary in that it permits federal courts to protect themselves from being
overburdened and to avoid undue interference with the states and with other branches
of the federal government
0, it is excellent
To have a giant's strength; but it is tyrannous
To use it like a giant.1
INTRODUCTION
Judges and lawyers have often said that the federal courts are obli-
gated to exercise the jurisdiction conferred on them by the Constitution
and by Congress. One of the earliest, sternest, and still most frequently
quoted of these admonitions came from Chief Justice Marshall in Cohens
v. Virginia: We have no more right to decline the exercise of jurisdic-
tion which is given, than to usurp that which is not given. The one or the
other would be treason to the constitution.2
Similar, if less frightening, statements appear in the Supreme
Court's decisions up to the present day. Only three Terms ago, Justice
* William Nelson Cromwell Professor of Law, Harvard University.
1 W. Shakespeare, Measure for Measure (act 2, scene 2, lines 107-09).
2 19 U.S. (6 Wheat.) 264, 404 (1821).
543

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