Introduction

The American system of civil litigation draws important differences between the parties to a case and everyone else. For instance, each party to a suit in federal district court normally can use the full panoply of discovery mechanisms to demand information from other people, and the court stands ready to enforce those demands. Nonparties have no similar power to gather information, even in cases that may affect their interests.¹ 1.See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties).Show More Likewise, when the district court enters judgment, only a party normally can appeal.² 2.See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf.Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule).Show More The judgment’s preclusive effect is correspondingly limited: although the practical consequences of a judgment can radiate outward, typically only the parties are formally bound.³ 3.See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule).Show More

Given the importance of the distinction between parties and other people, one might expect federal courts to have thought hard about who is eligible to become a party. Under the rubric of “standing” to sue, there has indeed been much discussion of who can initiate a suit in federal court against whom. Once a suit is launched, though, outsiders who are interested in the outcome often seek to intervene as additional parties so that they can conduct discovery, participate fully at trial, and pursue an appeal in the event of an adverse judgment. The law governing such motions is a mess.

The rules that govern intervention in civil actions in federal district court might seem straightforward. Federal Rule of Civil Procedure 24(a) says:

On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.⁴ 4.Fed. R. Civ. P. 24(a) (emphasis added).Show More

Rule 24(b)(1) adds:

On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.⁵ 5.Fed. R. Civ. P. 24(b)(1) (emphasis added).Show More

Of these two provisions, Rule 24(b)(1) is easier to interpret. The Federal Rules of Civil Procedure consistently use the word “claim” to mean a “claim for relief.”⁶ 6.See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules).Show More Likewise, a “defense” is a particular type of legal argument that the targets of a claim assert to explain why the court should not grant relief against them.⁷ 7.See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”).Show More If these words mean the same thing in Rule 24(b)(1) that they mean elsewhere in the Federal Rules of Civil Procedure, then (in the absence of special statutory authorization) an outsider cannot use Rule 24(b) to become a party to a case simply because the outsider has a practical stake in the outcome. Instead, the outsider needs to be a proper party to a claim for relief. Many judges, however, now permit intervention “even in ‘situations where the existence of any nominate “claim” or “defense” is difficult to find.’”⁸ 8.EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”).Show More

The criteria for intervention of right under Rule 24(a) are even less certain. In the words of a leading treatise, “There is not any clear definition of the nature of the ‘interest relating to the property or transaction that is the subject of [the] action’ that is required for intervention of right [under Rule 24(a)(2)].”⁹ 9.7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007).Show More Commentators agree that the cases on this topic are impossible to reconcile.¹⁰ 10.See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”).Show More

The confusion stems partly from the language of the rule. Lawyers often use the word “interest” in a specifically legal sense, to mean a right or other advantage that the law gives one person as against another person.¹¹ 11.See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”).Show More (Think, for instance, of what lawyers mean when they refer to present or future “interests” in property.) But the word can also be used in a less technical sense to refer to anything that a person wants, whether or not the law protects that desire.¹² 12.See Restatement (Second) of Torts § 1(Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”).Show More Although lower-court opinions have long reflected this ambiguity,¹³ 13.Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits).Show More the Supreme Court has provided little guidance about the nature of the “interest” required for intervention of right.¹⁴ 14.See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”).Show More Nor has the Supreme Court ever clarified exactly how the relevant interest must “relat[e] to” a particular transaction or item of property.

To give readers a sense of how some lower federal courts have handled these uncertainties, Part I of this Article surveys cases that have applied Rule 24(a) broadly. Especially in suits about issues of public moment, many federal judges have read Rule 24 to invite intervention by an extraordinary array of people who are not proper parties to any relevant claim for relief but who nonetheless have reason to care about the outcome of the case. In the late 1960s, Judge Harold Leventhal stated the animating idea behind this interpretation: “[T]he ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.”¹⁵ 15.Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supranote 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”).Show More

Part II canvasses the history of Rule 24 and concludes that this broad reading is wrong. To be sure, the 1966 amendment that produced the current version of Rule 24(a) was designed to authorize intervention of right by some outsiders who previously would have qualified only for permissive intervention, and who would have been relegated to separate litigation if their requests for permissive intervention were denied. But the 1966 amendment was not intended to authorize intervention of right by people who previously would not have been proper parties at all (such as the intervenors in the cases described in Part I).

Part III links the technical debate over intervention to fundamental questions about the goals of litigation and the proper role of the courts. In 1976, based partly on then-recent developments in intervention doctrine, Professor Abram Chayes speculated that “[w]e are witnessing the emergence of a new model of civil litigation”—one in which courts decide questions about “the operation of public policy” and “anyone whose interests may be significantly affected by the litigation . . . [is] presumptively entitled to participate in the suit on demand.”¹⁶ 16.Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976).Show More Professor Chayes himself hailed the capacity of courts to hear from “the range of interests that will be affected” and to devise better solutions to policy problems than the “bureaucracies” in other parts of the government.¹⁷ 17.Id. at 1308–10.Show More But the current Supreme Court may well be less sanguine about that prospect, and less willing to cast each federal district judge in the role of “policy planner and manager.”¹⁸ 18.Id. at 1302.Show More

Unless one is affirmatively trying to facilitate that role, much modern doctrine about intervention seems mistaken. When given its most natural reading, Rule 24 does not depart from traditional party structures nearly as much as current practice assumes.

1. * Emerson G. Spies Distinguished Professor of Law & Caddell and Chapman Professor of Law, University of Virginia. Thanks to Michael Collins, Scott Glass, John Harrison, and Ann Woolhandler for helpful comments. ↑

2. See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties). ↑
3. See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf. Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule). ↑
4. See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule). ↑
5. Fed. R. Civ. P. 24(a) (emphasis added). ↑
6. Fed. R. Civ. P. 24(b)(1) (emphasis added). ↑
7. See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules). ↑
8. See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”). ↑
9. EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”). ↑
10. 7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007). ↑
11. See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”). ↑
12. See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”). ↑
13. See Restatement (Second) of Torts § 1 (Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”). ↑
14. Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits). ↑
15. See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”). ↑
16. Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supra note 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”). ↑
17. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976). ↑
18. Id. at 1308–10. ↑
19. Id. at 1302. ↑

The post Intervention first appeared on Virginia Law Review.

By surveying decades of cases involving Colorado River abstention in two federal courts of appeals and two district courts, this Note reaches a startling conclusion. Driven by a lack of guidance from the U.S. Supreme Court and a desire to rid their dockets of duplicative suits, the lower courts have taken wildly divergent approaches to Colorado River. The Second Circuit Court of Appeals, for example, has applied the doctrine rigidly, demanding that district courts retain jurisdiction in all but the most exceptional circumstances. Under pressure from this circuit precedent, judges in the Southern District of New York have frequently sought to “effectively” abstain via alternative means, simultaneously relinquishing federal jurisdiction and frustrating appellate review. When they instead attempt to proceed to judgement rather than effectively abstain, the result is typically (and unsurprisingly) a significant waste of judicial resources. On the other hand, the Seventh Circuit has taken a highly permissive view of Colorado River abstention, watering down the otherwise restrictive doctrine. Judges in the Northern District of Illinois have taken up this view with alacrity, abstaining pursuant to Colorado River in the vast majority of cases involving parallel state litigation, subject only to limited and deferential appellate review.

This inconsistent doctrinal development could hardly be described as desirable—a combination of informal abstention and judicial waste in the Second Circuit compared with virtually unfettered discretion to formally abstain in the Seventh Circuit. Thus, this Note concludes with a comprehensive proposal to bring greater structure and coherency to the doctrine while avoiding both of these negative results.

If you can think of a subject which is interrelated and inextricably combined with another subject, without knowing anything about or giving any consideration to the second subject, then you have a legal mind.¹ 1.Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell).Show More

Introduction

Of the numerous complexities inherent in the United States’ dual federal-state court system, the potential for concurrent litigation is one of the most anomalous and vexing. Concurrent litigation, as it will be discussed in this Note, occurs when adverse parties simultaneously litigate the same or similar claims in both federal and state court.² 2.See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note.Show More Because the subject-matter jurisdictions of these dual judicial systems are largely concurrent,³ 3.Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy].Show More this phenomenon is not uncommon. Though seemingly at odds with the U.S. Supreme Court’s insistence that the state and federal courts “are not foreign to each other, nor to be treated by each other as such, but as courts of the same country,”⁴ 4.Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137).Show More parallel state-federal litigation is nonetheless permitted, and duplicative cases are generally allowed to proceed in both courts simultaneously.⁵ 5.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))).Show More Notwithstanding the inherently wasteful nature of such litigation,⁶ 6.James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”).Show More the ability of a federal court to decline jurisdiction over a case that is duplicative of an ongoing state proceeding is, at least in theory, extremely narrow.⁷ 7.Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”).Show More

As courts of limited jurisdiction, the federal courts possess only the jurisdiction conferred by the Constitution and congressional statute.⁸ 8.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More While it is traditionally accepted that Congress retains plenary power to control the jurisdiction of the lower federal courts,⁹ 9.Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75.Show More whether those courts are required to exercise the jurisdiction given them is less certain.¹⁰ 10.For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction).Show More Where state and federal courts enjoy overlapping jurisdiction, the answer to that question is governed partially by the abstention doctrines.¹¹ 11.See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003).Show More Federal abstention law comprises a series of “judge-made” doctrines¹² 12.Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law).Show More that “identify the circumstances in which federal courts deem it appropriate to refrain from adjudicating a case to permit some other body—typically a state court—to adjudicate it first.”¹³ 13.Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”).Show More

It is the most recently developed of these doctrines,¹⁴ 14.The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971).Show More known as Colorado River abstention, that governs a federal court’s limited ability to refrain from exercising jurisdiction over cases involving concurrent litigation.¹⁵ 15.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention).Show More As described by the Supreme Court in the eponymous case of Colorado River Water Conservation District v. United States,¹⁶ 16.424 U.S. 800 (1976).Show More this doctrine is a carefully circumscribed exception to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.”¹⁷ 17.Id. at 817.Show More The Court acknowledged that considerations of judicial economy and efficiency could indeed permit a federal court to decline jurisdiction in this context, but it emphasized that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention” under the other abstention doctrines.¹⁸ 18.Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983).Show More

Since its promulgation in 1976, Colorado River abstention has been the subject of significant scholarly commentary, both favorable and critical.¹⁹ 19.It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10.Show More Though the academy has been quick to take sides on the propriety and usefulness of the doctrine, commentators have devoted scant attention to its function in practice. Most discussion of the topic has been theoretical, and there has been virtually no effort to systematically analyze how the doctrine is applied by the lower courts.²⁰ 20.Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)).Show More Without a picture of the practical import of Colorado River abstention, it is difficult to validate much of the scholarly commentary, both positive and negative. Given that the Supreme Court has scarcely addressed the topic in more than three decades,²¹ 21.See infra notes 60–68 and accompanying text.Show More and hence the bulk of the doctrinal development has occurred in the lower courts, this gap in the literature is all the more significant.

The purpose of this Note is to begin closing that gap by analyzing the degree to which lower federal courts fulfill their “virtually unflagging obligation” in practice. To do so, I reviewed all opinions that referenced Colorado River abstention over the course of ten years, 2008–2018, in two federal district courts, the U.S. District Court for the Southern District of New York and the Northern District of Illinois. I did the same with twenty-five years of opinions, 1993–2018, issued by the appellate courts to which cases from those districts are appealed, the U.S. Courts of Appeals for the Second and Seventh Circuits.²² 22.A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008).Show More

Various factors informed my choice of both the courts and timeframe for analysis. With respect to courts, I chose the Southern District of New York and the Northern District of Illinois for three reasons. First, each handles a high volume of civil litigation and hears a wide variety of civil cases.²³ 23.In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT].Show More Second, the decisions of these courts are appealed to two different courts of appeals, enabling an investigation of differences in doctrinal development and application between circuits. Third, and most importantly, they appear to have heard the highest number of requests to abstain under Colorado River over the applicable timeframe.²⁴ 24.This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each.Show More Thus, focusing on these two courts was intended to enable an analysis of a diversity of Colorado River cases decided by judges relatively familiar with the doctrine. The temporal scope was chosen partially for simple administrative feasibility and to capture the most recent doctrinal developments. Furthermore, as a portion of the research involved analyzing the time between a case being filed and reaching judgment,²⁵ 25.See infra note 119 and accompanying text.Show More it was essential that the analyzed cases be governed by a relatively consistent pleading standard. Therefore, the starting date was chosen so as to fall after the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,²⁶ 26.550 U.S. 544 (2007).Show More which announced the heightened “plausibility” pleading standard for federal suits.²⁷ 27.Id. at 556–57.Show More

Analysis of these cases reveals stark trends. By and large, the application of Colorado River abstention in the lower courts is a story of confusion and unpredictability. Struggling with a paucity of guidance from the Supreme Court, the courts of appeals and their corresponding district courts have taken divergent approaches to the issue. Federal cases involving parallel state court litigation can expect wildly different treatment if filed in the Southern District of New York versus the Northern District of Illinois. Moreover, though they take nearly opposite approaches, neither court’s methodology has furthered the goals of either Colorado River abstention’s critics or its supporters. Indeed, it could be said that the worst fears of both sides of the argument have been realized—the doctrine as currently applied promotes judicial waste, creates uncertainty for judges and litigants alike, and often results in the parties being denied access to a federal forum without a sufficiently clear (or any) rationale.

This Note addresses these issues and considers their resulting implications in four parts. Part I provides necessary background. It briefly reviews the types and causes of concurrent state-federal litigation. It then traces the historical development in the lower federal courts of what would come to be known as Colorado River abstention. This Part concludes with an overview of the doctrine itself as promulgated by the Supreme Court in Colorado River and subsequent cases. Part II presents the findings of my lower court research. It summarizes the relevant doctrinal development in each circuit then analyzes, both quantitatively and qualitatively, the application of that doctrine in the district courts. Part III synthesizes the conclusions of the lower court research and proposes an alternative framework under which questions of Colorado River abstention could be decided. Given the unsatisfactory nature of the doctrine as currently applied, the purpose of this proposal is to create greater theoretical coherence and decisional consistency while simultaneously maximizing efficiency and conserving judicial resources. Part IV concludes by briefly addressing and rebutting potential objections to the proposal offered in Part III. In sum, this Note offers a practical reassessment of what could be a valuable doctrine of federal courts law but what currently represents little more than another source of needless litigation over jurisdiction.

1. * J.D., University of Virginia School of Law, 2019. I am indebted to Professors John C. Jeffries, Jr. and Caleb Nelson for their helpful comments and discussions. Special thanks are also due to the members of the Virginia Law Review who assisted in the editing and preparation of this piece, including Nick Carey, Julian Kritz, Laura Toulme, Edward Wixler, and many others. Any errors are my own. ↑
2. Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell). ↑
3. See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note. ↑
4. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy]. ↑
5. Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137). ↑
6. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))). ↑
7. James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”). ↑
8. Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”). ↑
9. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
10. Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75. ↑
11. For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction). ↑
12. See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003). ↑
13. Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law). ↑
14. Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”). ↑
15. The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971). ↑
16. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention). ↑
17. 424 U.S. 800 (1976). ↑
18. Id. at 817. ↑
19. Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). ↑
20. It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10. ↑
21. Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)). ↑
22. See infra notes 60–68 and accompanying text. ↑
23. A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008). ↑
24. In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT]. ↑
25. This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each. ↑
26. See infra note 119 and accompanying text. ↑
27. 550 U.S. 544 (2007). ↑
28. Id. at 556–57. ↑

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