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Since 1789, diversity of citizenship jurisdiction has been a staple of the American judicial system. After presenting a general theory of jurisdictional change and reviewing diversity jurisdiction's development, the author undertakes a quantitative analysis of congressional activity vis-a-vis diversity jurisdiction. That analysis provides evidence that both administrative concerns and attention to federal judicial outcomes have impacted legislative decisions concerning the scope of diversity jurisdiction. These findings also suggest that members of Congress are selective in dealing with the jurisdiction of federal courts and that approaches to jurisdictional oversight vary in response to the salience of the legal issues at hand. Keywords: jurisdiction; courts; Congress; diversity of citizenship

This article considers the sort of diversity in perspective appropriate for a presidential commission on bioethics, and by implication, high-level governmental commissions on ethics more generally. It takes as its point of comparison the respective reports on human cloning produced by the National Bioethics Advisory Commission, appointed by President Bill Clinton, and George W. Bush's President's Council on Bioethics, under the leadership of its original chair, Leon Kass. I argue that the Clinton Commission Report exemplifies forensic diversity (the type of diversity between contesting parties in a legal case), while the Kass Council Report exemplifies academic diversity (the diversity found in a medieval disputatio). Drawing upon Thomas Aquinas, I argue that the type of diversity most appropriate for such advisory bodies is deliberative diversity, which facilitates the President's process of taking counsel. After considering their respective charges, I suggest that neither the Clinton Commission nor the Kass Council possessed an adequate degree of deliberative diversity for their respective tasks.

Federal courts scholars see the Reconstruction-era enactment of general federal question jurisdiction(1) as a decisive moment in judicial federalism. The conventional wisdom is that with the 1875 Act, Congress gave [...], Traditional federal courts scholarship assumes that it was only with the post-Reconstruction advent of general federal question jurisdiction that the federal courts took on their role as primary guarantors of constitutional rights. Professor Woolhandler shows that, both before and after the advent of the 1875 general federal question statute, the federal courts aggressively employed diversity jurisdiction as a substitute form of federal question jurisdiction. Under the diversity rubric, federal courts developed independent federal rights and remedies for constitutional violations against state and local officials in actions both at law and in equity. These developments suggest that the modern nondiversity constitutional action did not, as is often assumed, derive from a state law cause of action to which federal ingredients were added 'interstitially. ' Rather it developed from the federal courts' longstanding practice of supplying remedial rights in diversity without regard to state law limitations. This use of diversity jurisdiction also suggests that the federal courts' role in providing constitutional remedies should be seen as a more continuous, less crisis-driven development than traditional federal courts scholarship has supposed. In this Article, Professor Woolhandler also explores parallel remedial developments regarding the enforcement, of federal constitutional rights in state courts. She concludes that the Supreme Court, on direct review, was willing to force upon the state courts trespass remedies against state officials as an additional avenue for remedying unconstitutional action. Such remedy forcing, together with the federal courts' continued provision of similar remedies under their own jurisdictional grants, suggests that there was a common law baseline of remedies against official law abrogation. This historical account argues for the continued existence of some form of constitutionally required remedies against state and local officials, even for some actions that may violate only state law At the same time, this same history offers little support for insisting that states maintain actions against themselves in state courts or that federal courts be available to redress random governmental invasions of liberty or property that fail to implicate constitutional concerns beyond the trespass itself.

The most aggressive version of judicial estoppel, whether in federal or state law, should be applied by federal courts sitting in diversity. The recommended approach involves a modification of the Erie doctrine, one that results in a more even allocation of power between the federal and state courts. Parallel treatments of conflict of laws issues such as statutes of limitations and evidentiary privileges support the recommended approach. Current approaches to judicial estoppel include the success test, the fast and loose test and complete rejection of estoppel.