Jurisdiction by cross-reference.

• Author: Mulligan, Lumen N.

TABLE OF CONTENTS I. INTRODUCTION II. THE MIXING AND MATCHING OF STATE AND FEDERAL LAW A. The Idea of Cross-Referencing B. Cross-Referencing with Varying Degrees of Force III. CROSS-REFERENCING AND DECLARATORY POWER A. Mandatory Cross-References 1. Protective Jurisdiction 2. Shoshone-Style Cross-References 3. Waiving Sovereign Immunity to State-Law Suits 4. State-Law Mandatory Cross-References to Federal Law B. Discretionary Cross-References 1. Tucker Act 2. Miller Act 3. Federal Common Law Type I 4. State-Law Discretionary Cross-References to Federal Law C. Metadiscretionary Cross-References 1. Enclave Jurisdiction 2. Federal Common Law Rights Type II 3. Michigan v. Long IV. LESSONS LEARNED BY MIXING IT UP A. No Federal Question Jurisdiction Without the Power to Declare Law B. Formalism and the Federal Question V. CONCLUSION I. INTRODUCTION

Although we often conceive of state and federal claims as distinct species, these animals have been interbreeding for some time. As a result, state law often cross-references federal law as the rule of decision and vice versa. While this cross-referencing creates quandaries of all stripes, these difficulties are perhaps most acute in those cases where a federal court must determine whether such cross-referenced regimes create federal question, as opposed to diversity, subject matter jurisdiction. This difficulty often leads to apparently inconsistent jurisprudence. For example, state judicial incorporation of federal standards as the rule of decision, under Michigan v. Long, (1) most often results in federal question jurisdiction, while state incorporation of a federal standard as an element of a state cause of action, in so-called hybrid actions, infrequently results in federal question jurisdiction. (2) Federal incorporation of state law also produces equally divergent jurisdictional opinions. As Shoshone Mining Co. v. Rutter (3) and attempts at enacting protective jurisdiction (4) illustrate, Congress may not merely cross-reference state law and thereby create federal question jurisdiction; yet near analogous cross-referencing of state law as the rule of decision in the federal common law context (5) results in federal question jurisdiction. (6) Equally puzzling, the cross-referencing of state law under the Miller Act (7) creates federal question jurisdiction, (8) while the nearly identical use of state law under the Tucker Act (9) does not. (10) Similarly inconsistent, the courts find that the incorporation of state law as the rule of decision in federal enclaves creates federal question jurisdiction, (11) while near analogous incorporation of state standards into federal law under the Federal Tort Claims Act (12) does not create federal question jurisdiction. (13)

These cross-referential puzzles have not escaped the academic eye. Scholars have explored extensively whether state common law cross-references to federal law raise federal question jurisdiction, (14) whether state constitutional cross-references to federal rules of decision present federal questions, (15) whether Congress may enact so-called protective jurisdiction, (16) and the like. By and large, however, these efforts have focused on only one type of cross-reference at a time, eschewing a treatment of cross-referencing writ large. I aim to tackle this broader project.

In this Article, I offer an ordering principle for these cross-referential, jurisdictional cases--namely, that the federal courts only take federal question jurisdiction over cross-referenced claims when they, from a departmental perspective, maintain declaratory authority over the cross-referenced law. By declaratory authority, I mean that the forum court is empowered to authoritatively establish the content of the cross-referenced law. (17) Declaratory authority is to be contrasted, then, to those situations, like cases heard in diversity, in which the forum court lacks the power to authoritatively establish the content of the law at issue. (18) I elucidate this principle by finding that cross-referencing regimes deploy cross-references of differing strengths. Under the taxonomy I advocate, a cross-reference may be mandatory, discretionary, or metadiscretionary. Deploying this classification scheme, I contend that the federal courts do not take federal question jurisdiction over cases in which Congress creates mandatory cross-references to state law. They only take federal question jurisdiction over cases in which the federal courts, from a departmental perspective, possess declaratory power over the question of law presented. State-law cross-references to federal law work in a mirror-like fashion, taking federal question jurisdiction only when the cross-reference is mandatory, but reach the same result of preserving federal declaratory authority.

I further argue that this cross-referential ordering principle offers significant insights into the nature of federal question claims more generally. First, on judicial independence grounds, federal courts under federal question jurisdiction, contrary to the dominant view famously espoused by Professor Mishkin, (19) do not stand ready to hear cases in which the judiciary as a whole is deployed merely as a fact-finding forum. Second, as these cross-referential cases lay bare, the Court's tendency is to vest federal question jurisdiction upon mere formal distinctions, which often leads to significant separation-of-powers difficulties. (20) As such, I advocate that jurisdiction over all cross-referenced regimes proceed on functionalist lines.

I begin, in Part II, by laying the analytical foundation for this discussion. I define the notion of cross-referencing with more precision and present the varying strengths with which a cross-reference may be made. With these tools at hand, in Part III, I establish my primary claim--that the federal courts only take federal question jurisdiction over cross-referenced cases in which they maintain declaratory authority. I proceed in this Part by categorizing jurisdictional rulings by strength of cross-reference, addressing mandatory, discretionary, and metadiscretionary cross-references in turn. In so doing, I explore both federal cross-references to state law and state-law cross-references to federal law. I contend that the federal courts routinely refuse federal question jurisdiction over congressional, mandatory cross-references to state law, yet will take jurisdiction over suits in which the courts make discretionary or metadiscretionary cross-references to state law. I further note that the federal courts will take federal question jurisdiction over state-law cross-references to federal rules only when the cross-reference is nondiscretionary. Both practices, I contend, preserve the declaratory power of the federal courts over the cross-referenced legal question.

In Part IV, I address the broader implications of this finding that the federal courts require declaratory power to vest federal question jurisdiction in cross-referential cases. First, I address how this requirement of declaratory power, which conforms to the original understanding of federal question jurisdiction and with norms of judicial independence, runs contrary to the predominantly held notion that federal courts should be open to purely fact-bound claims in federal question jurisdiction. Second, I critique the Court's overly formalistic reasoning in the cross-referenced context because it raises significant separation-of-powers concerns vis-a-vis congressional control over federal court jurisdiction. I conclude by advocating for a functionalist perspective of cross-referenced regimes. While aiming to remain agnostic upon the propriety of any particular type of cross-referenced scheme, I argue that the courts should not vest federal question jurisdiction upon purely formalistic grounds and assume that the pragmatic ills of assumed extrajurisdictional approaches, such as protective jurisdiction, will be avoided.

2. THE MIXING AND MATCHING OF STATE AND FEDERAL LAW

   In this Part, I offer a more detailed explanation of the notions I deploy to analyze cross-referenced regimes. I begin with an exposition on how cross-referencing operates. I turn next to a classification of the varying strengths by which cross-references are made. With these tools at hand, in Part III, I turn to an investigation of federal question jurisdiction in the cross-referenced context.

   1. The Idea of Cross-Referencing

      To understand how cross-referencing works, one must take in the technical distinctions between the concepts of right and cause of action. At the common law, under the then-extant writ pleading system, the concepts of right and cause of action (or what is sometimes referred to as "remedy" or a "right of action") were thought to be immutably linked--one did not exist without the other. (21) As Justice Harlan noted, "contemporary modes of jurisprudential thought ... appeared to link 'rights' and 'remedies' in a 1:1 correlation...." (22) Given this congruity, in times past the jurists would use the terms cause of action, right, and remedy interchangeably, especially in jurisdictional analyses.

      This traditional jurisprudence of congruity, however, had by the 1970s given way to a new regime, (23) with the Court explicitly differentiating rights from the ability to enforce them by way of a cause of action. (24) By the end of the decade, the Court in Davis v. Passman (25) squarely held that the notions of right and cause of action constituted distinct analytic concepts.

      Under the now-prevailing view, a right is an obligation owed by the defendant to which the plaintiff is an intended beneficiary. (26) Further, to qualify as a right, an obligation must be mandatory, not merely hortatory, (27) and the language at issue must not be "too vague and amorphous" or "beyond the competence of the judiciary to enforce." (28) This three-part test (i.e., mandatory obligation, clear statement, and enforceability) (29)...