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41 Harv. L. Rev. 483 (1927-1928)
The Historic Basis of Diversity Jurisdiction

handle is hein.journals/hlr41 and id is 533 raw text is: THE HISTORIC BASIS OF DIVERSITY JURISDICTION 483 THE HISTORIC BASIS OF DIVERSITY JURISDICTION * M 7HY is it, inquired James Bradley Thayer with reference V to the jurisdiction of the federal courts in cases of diverse citizenship, that a United States court is given this duty of ad- ministering the law of another jurisdiction? Why did the States allow it? Why was it important that the United States should have it? I These questions are not purely academic. In 1914 a committee aiming to secure greater efficiency in the administration of justice mentioned the diversity jurisdiction of the federal courts as one of the principal obstacles that lay in the way of attaining that end.' Signs are not wanting that Congress is aware of the problem, and that legislation of some sort or other is not far off.' Legislation, if it is to be intelligent, must begin by asking the same questions that were asked, but not answered, by Professor Thayer.4 When we know why the federal courts were given this jurisdiction and how they handled it in their early years, we shall have taken one small step toward understanding the problem of today. * The writer desires to acknowledge his very great indebtedness to Professor Felix Frankfurter of the Harvard Law School, both for suggesting the subject of this paper and for constant help in its preparation. I Thayer, The Case of Gelpcke v. Dubuque (1891) 4 HARv. L. REv. 311, 316. 2 The Committee consisted of Charles W. Eliot, Louis D. Brandeis, Moorfield Storey, Adolph J. Rodenbeck, and Roscoe Pound. It said: In those parts of the country in which resort to the federal courts in cases of diversity of citizenship is common the concurrent jurisdiction of state and federal courts on the ground of diverse citizenship often causes much delay, expense, and uncertainty. . . . More- over, the difference in the view which state and federal courts respectively take as to the law applicable to the same case results in irritation which has somewhat im- paired the usefulness of the federal courts in some localities. P~m~nmnAgy RE,- PORT ON EirilcINcy iN THE ADMImSTRAnON OF JUSTIC (1914) 28. 8 See Frankfurter and Landis, The Business of the Supreme Court of the United States (1927) 40 HARv. L. REv. 834, 871. 4 Thayer contented himself with citing Hamilton's discussion in No. 80 of THE FEDERALIST. It is true, of course, that the latter's explanation of diversity jurisdiction on the basis of local prejudice has been written into the Constitution by judicial decision. See the quotation from Bank of the United States v. Devaux, 5 Cranch 61, 87 (U. S. i8og), infra p. 492.

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