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Abstract

The complete diversity rule is among the most criticized rules in the law of federal jurisdiction. The product of Chief Justice John Marshall’s cryptic decision in Strawbridge v. Curtiss, the rule vests federal diversity jurisdiction only if all adverse parties on a complaint are citizens of different states. Complete diversity protects states’ control of state-law litigation. Yet, the rule is also hard to square with the diversity statutes’ text. As a result, federal jurisdiction mavens have condemned the complete diversity rule as a Marshall invention “out of whole cloth.” This Article offers new historical evidence that proves the critics wrong. The complete diversity rule turns out to be a straightforward application of an ancient canon of construction, the canon against jurisdictional privilege. The canon governed the interpretation of jurisdictional grants keyed to a litigant’s legal status. It directed construing these grants against jurisdiction when a party lacking the requisite status was joined alongside someone possessing that status. And the canon operated unless it was expressly disclaimed by the jurisdictional grantor. Textual cues strongly suggest Chief Justice Marshall relied on period treatments of the canon to decide Strawbridge. By recovering this history, this Article builds a case for complete diversity’s compatibility with important strands of textualism. Although textualists disagree about the validity of substantive canons of construction, leading textualist-originalists argue substantive canons are legitimate if they (1) predate the founding and (2) are used to construe ambiguous statutes or statutes communicating technical legal content or (3) supplement constitutional structure. The canon against jurisdictional privilege has just these features—it (long) predates the founding, while protecting state courts’ role in our system of federalism. And applied to diversity jurisdiction, it resolves ambiguity in texts that communicate technical legal content. Strawbridge, it follows, is a canon-based decision that deserves textualists’ respect. This Article’s historical evidence also raises major new questions about whether complete diversity is constitutionally required. Leading schools of originalism disagree about when canons can inform constitutional interpretation. But the canon against jurisdictional privilege would seem relevant to Article III’s original meaning under every major school of originalism. The canon thus points to the significant additional possibility that originalists should read the text of Article III’s diversity grant, not just Congress’s diversity statute, to reach no farther than instances of complete diversity. This history does not necessarily doom statutes (like the important Class Action Fairness Act) that ditch the complete diversity rule. It does mean the originalist case for these statutes depends on identifying constitutional language that overcomes the canon on the constitutional plane. This Article ends by suggesting one promising candidate—the Necessary and Proper Clause—for future research.

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