Diversity Jurisdiction
![handle is hein.journals/byulr1990 and id is 107 raw text is: Diversity Jurisdiction
Larry Kramer*
I. INTRODUCTION
When the federal courts were created, deciding diversity
cases was one of their most important functions. Indeed, without
diversity jurisdiction, the circuit courts created by the First Ju-
diciary Act would have had very little to do.1 At the time, there
was not much federal law and thus not much need for federal
question jurisdiction. Instead, the most important concerns in
establishing federal courts were to enhance[] awareness in the
people of the existence of the new and originally weak central
government,2 and to foster a secure environment for interstate
commerce.3
While the grant of diversity jurisdiction apparently served
these purposes well, conditions had changed by the end of the
nineteenth century. Commerce among the states was flourishing
and required less protection from the federal courts. The federal
government and the laws it enacted were vastly more important
than they had been when the federal courts were established.
General federal question jurisdiction had been conferred in 1875,
and the business of the federal courts focused increasingly on
questions of federal law. These changes soon generated pressures
to curtail or eliminate diversity jurisdiction. Roscoe Pound de-
livered the opening salvo in 1906, describing diversity as
archaic in a speech to the American Bar Association.4 Out-
* Assistant Professor of Law, University of Chicago Law School. This paper was
prepared in connection with the author's work as reporter for the Subcommittee on the
Role of the Federal Courts and Their Relations to the States of the Federal Courts
Study Committee. I am grateful to Dan Meltzer, Alan Morrison, Richard Posner, Judith
Resnik and Tom Rowe for their helpful comments and criticism.
1. H. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 141 (1973).
2. AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE
AND FEDERAL COURTS 101 (1969) [hereinafter ALI STUDY].
3. See Frank, Historical Bases of the Federal Judicial System, 13 LAW & CONTEMP.
PROBs. 2 (1948); Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV.
483 (1928).
4. Address by Roscoe Pound on the Causes of Popular Dissatisfaction with the Ad-](ViewImageLocal?handle=hein.journals/byulr1990&div=11&collection=&method=preview&ext=.png&size=3)
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