Parity as a Constitutional Question

Abstract

There is much in Professor Chemerinsky's and Professor Wells's thoughtful Articles with which I agree. My remarks, however, will focus on those areas in which I tend to disagree, or have a slightly different formulation of the issues. Both professors contend that parity should not be primarily understood as an empirical issue, but for rather different reasons-Wells because he thinks there is agreement about the empirical issue and Chemerinsky in part because he thinks that it is going to be difficult to find an answer to the empirical question. I agree with their conclusion, but will try to avoid taking sides by offering yet a third reason that I find more compelling. Chemerinsky also argues that the issue of parity should not be one for judicial policymaking. I agree with that, too, but I do not agree that it follows that Congress should have unfettered discretion to allocate jurisdiction between state and federal courts. I would like to argue that both professors have framed the issue of parity too narrowly by thinking only about state courts versus lower federal courts sitting in original jurisdiction. Neither professor seems to be thinking about parity in the larger context-about state court jurisdiction versus the federal judicial power of the United States as a whole. This is a context which would include not just original jurisdiction, but also appellate jurisdiction, not just lower federal court jurisdiction, but also Supreme Court jurisdiction. Widening the frame in this way would focus our attention on the ways in which lower federal courts could serve as de jure and de facto appellate tribunals over state courts in a wide array of doctrinal contexts. Let me now try to spell all that out.