Amateur Hour: Conservatives Tackle Pullman Abstention

Charming. In reading up for the prior post, I was struck with the misfortune of having to load Pamela Geller’s hate blog for long enough to be able to copy a link from the address bar. Try as I might to avoid it, a single word caught my eye: “abstention.” Huh? Is America’s most vitriolic anti-Islamic hatemonger really quoting one of the more obscure federal courts doctrines, ever? And why?

The first question is answered in the affirmative. And the second, probably, can be explained by her desire to  sound like an expert. Abstention, she explains, allows courts to duck the problem this blog flagged earlier: how to handle arbitrations where the parties contract under religious law. When presented with such controversy, she says, the federal court may simply decline jurisdiction.

No. Abstention (whether under Pullman or Thibodauxstands for the principle that a federal court may decline jurisdiction where the state legislature, or the state courts, should authoritatively construe a question with unusual local significance. This has no bearing on difficult questions of arbitrability. First, it is a federal policy, embodied in the Federal Arbitration Act, that courts should vigorously effectuate an arbitration contract as written, contrary state law notwithstanding, as the Volt/Hall Street/Mastrobuono trilogy made clear. Therefore, the federal/state conflict required for Thibodaux or Pullman abstention simply doesn’t exist here: rather, the FAA suggests federal courts should (and potentially must; FAA preemption is an unsettled issue) take jurisdiction of disputes thereunder.

Second, the controversial Florida case that she’s flipping out about arose in state court, that is, the entity usually deferred to under abstention doctrines. State courts have no-one to defer to. They can’t pass the buck.

Third, abstention is basically an invention of Professors Hart and Wechsler, who in their hugely consequential Federal Courts and the Federal System attempted to infer, with great success, a unitary federal system from the Supreme Court’s largely ad hoc case law on the subject. The abstention chapter is probably their only failure.

I’ve enjoyed immensely watching Birthers try to wrap their heads around Article III standing. I’m glad that joy can continue on a new subject.

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