Suzanna Sherry

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Notre Dame Law Review

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Conventional wisdom holds that federal jurisdiction is contracting and district court discretion is expanding. This Article argues that the conventional wisdom is wrong, and that the true doctrinal trends do not bode well for federal courts. The Supreme Court and the courts of appeals have begun to expand federal jurisdiction and contract judicial discretion, although few have noticed. The new jurisdictional trend is worrisome because the Court has not acknowledged - much less explained - its change of direction. As a result, the new rules are often unclear and inconsistent with existing precedent, leaving lower courts with little guidance. At the same time, the diminished discretion imposes its own costs. Reduced trial-court discretion affects docket management, reduces courts' ability to police the behavior of lawyers and litigants, and harms the relationship between state and federal judicial systems. The federal court system is thus not functioning as it should: The simultaneous trends have produced an internally inconsistent and inexplicable regime in which a combination of fuzzy rules on jurisdictional questions and clear rules limiting trial-court discretion on other issues misallocates judicial resources between trial and appellate courts. The Article suggests that the problem is caused by appellate judges who lack sufficient trial-court experience. Without hands-on experience at the trial level, appellate judges - on both the Supreme Court and the courts of appeals - have little or no understanding of how their decisions play out on the ground. Only by increasing the number of former district judges on the appellate bench might we see relief from the problems that currently plague litigation.

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