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43 Tex. L. Rev. 1 (1964-1965)
Diversity Jurisdiction: Past, Present, and Future

handle is hein.journals/tlr43 and id is 41 raw text is: TEXAS LAW REVIEW VOLUME 43 November 1964 NUMBER 1 DIVERSITY JURISDICTION: PAST, PRESENT, AND FUTURE* JAMES WILLIAM MOOREt AND DONALD T. WECKSTEIN** Diversity jurisdiction has been a source of controversy in this country since the Constitutional Convention. Most of the writing in the area today, including the ALI's Study of the Division of Jurisdiction Be- tween State and Federal Courts, recommends curtailing jurisdiction. Professors Moore and Weckstein, after providing a background of diversity from the earliest days to the present, present rather com- pelling reasons why diversity should be extended, not curtailed. Not the least of their suggestions is that Strawbridge v. Curtiss should be rejected in favor of a minimal diversity rule. For one hundred seventy-five years the federal trial courts have exercised jurisdiction in cases between citizens of different states. While there are other segments cf federal jurisdiction as old as diversity, probably none is as con- troversial. From the beginning, proposals have been made to abolish or sub- stantially curtail diversity jurisdiction and many words have been written in support of, or in opposition to, such proposals. But we go further. We contend that experience and sound future planning justify an extension rather than a curtailment of many phases of diversity jurisdiction. To evalu- ate where diversity should be going, it is best first to understand where it has been and where it is now. I. PAST While surprisingly little information is to be found in the records of the Constitutional Convention on the basis for the federal judicial power,' it is known that the lack of an organized national judiciary was considered as one of the major defects of the Union under the Articles of Confederation.2 Thus, * This article is adapted from part of an extensive treatment of diversity jurisdiction to be published by Matthew Bender & Company in Moore's Federal Practice. All copy- rights including the right to reproduce this article in whole or part are reserved or assigned to Matthew Bender & Company. t Sterling Professor of Law, Yale Law School. **Assodate Professor of Law, University of Tennessee. 1 FARRAND, THE FRAMING OF THE CONSTITUTION 154 (1913). 21d. at 50; FRANKFURTER & LANDIS, THE BusINEss OF THE SUPREME COURT 8-9 (1928) ; THE FDEa, AnST No. 22, at 116 (Colonial ed. 1901) (Hamilton); HUGHES, THE SUPREME COURT OF THE UNITED STATES 4-9 (1928); 2 STORY, COMMENTARIES ON THE I

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