Document Type

Article

Publication Title

Michigan Law Review

Abstract

Acknowledging that in some form the principle of abstention probably is here to stay, this article offers a revisionist theory of abstention. The key to this revisionist theory is recognizing that the Supreme Court's decisions expanding the scope of federal jurisdiction and its decisions requiring abstention from the exercise of federal jurisdiction employ very different premises regarding the adequacy of state courts to protect federal rights, and that these premises must be reconciled if abstention ever is. to make any sense. The competing premises can be reconciled because in some cases falling within federal jurisdiction an initial federal trial forum is unnecessary to vindicate federal rights; in such cases, state court proceedings followed by Supreme Court review will protect federal rights. Where federal rights are protected in this way, state interests in state-court adjudication justify abstention. The revisionist theory rests on the notion that federal review may be necessary to protect federal interests, but accommoddtes the abstention doctrine on the ground that such review need not always occur in a federal trial forum. This article offers a straightforward model for identifying cases in which abstention threatens federal rights - and so is inappropriate - and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be - and only should be - available where necessary to protect federal rights. For example, if fact-finding is not critical to a federal plaintiff's case, initial litigation in state court· followed by U.S. Supreme Court review should satisfy federal concerns. Part III explains at some length how application of the revisionist theory would be consistent with most of the Supreme Court's abstention precedents, while providing a more satisfactory explanation for those precedents which would give meaningful guidance to lower courts and litigants as to when abstention is appropriate. Finally, the concluding section answers some of the potential questions raised by the revisionist theory, including whether the revisionist theory requires too much ad hoc decisionmaking in abstention cases, and whether direct U.S. Supreme Court review is adequate in any given case to protect federal rights.

First Page

530

DOI

https://doi.org/10.2307/1289111

Volume

88

Publication Date

1989

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