Wednesday, August 12, 2015

Mask and MacMahon on Revolutionary-War Prize Cases

Deirdre Mask, London School of Economics, Political Science, and Paul MacMahon
London School of Economics, Law Department, have posted The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction, which appears in the Buffalo Law Review 63 (2015): 477-547.   
Why did the Framers give the federal courts diversity jurisdiction? This Article brings to light a crucial but forgotten source of inspiration for diversity jurisdiction, showing that previous explanations ignore the Framers’ experience judging prize case appeals during the Revolutionary War. Scholars have largely rejected the view that the Framers anticipated state bias in diversity litigation, arguing, for example, that diversity jurisdiction was designed to provide a high-quality venue for commercial disputes. Yet placing the Framers’ decision in the context of their lived experience as judges in contentious "Prize Cases" during the Revolutionary War rehabilitates the geographic bias theory. During the War, the Continental Congress relied heavily on privateers — private citizens, who, with the financial support of individual states or Congress, were authorized to capture British ships. At George Washington’s urging, the Continental Congress set up an adjudicatory committee within Congress itself, the Committee on Appeals, to resolve appeals from prize cases in the state courts. The Framers’ taste of judicial work exposed them to contentious interstate disputes — a preview of what diversity litigation would look like in the new country. We argue that this experience, almost entirely ignored by contemporary scholars, directly inspired the otherwise perplexing decision to include diversity jurisdiction in Article III.

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