JUDICIAL CODE

The Judicial Code of the United States is an official collection and codification of laws governing the federal judiciary and federal court procedures. Codified as Title 28 of the United States Code, the Judicial Code is an exercise of the Article I power of Congress to make such laws as it deems necessary and proper for carrying into execution the broad and ill-defined powers vested in the judiciary by Article III of the Constitution.

The present code, enacted in 1948, is the lineal descendant of the original judiciary act of 1789, the judiciary portions of the revised statutes of 1877, and the Judicial Code of 1911. It is an effort by judicial, legislative, and legal experts to rearrange, update, and improve the many laws dealing with the federal judicial system. Additions and improvements are periodically made by Congress, and integrated into the structural scheme of the code. The code itself is divided into six main parts, with numerous subdivisions, each relating to a particular subject matter. Among the more important subjects covered by the code are: the organization, personnel, and administration of the federal courts, including the supreme court; the jurisdiction conferred by Congress on these various courts, including the Supreme Court; provisions for determining the proper venue for instituting a case in a united states district court, and provisions governing the removal to a federal court of a case instituted in a state court; and the procedures to be followed in various kinds of federal court proceedings.

The 1948 revision and recodification have been both highly praised and highly criticized. Criticism has often been focused on the provisions dealing with the jurisdiction of the federal district courts, for it is the exercise of that jurisdiction that most directly affects the delicate and controversial federal-state court relationships. Concern for these relationships led the American Law Institute to undertake a major study of the Judicial Code, culminating in a 1968 proposal to revise substantial portions of the code. Specifically, the institute suggested major modifications and limitations respecting district courts' diversity-of-citizenship jurisdiction, as well as clarifications of federal question jurisdiction and admiralty and mari-time jurisdiction, and changes as to venue and removal of actions from state courts. Some of the institute's proposals bore legislative fruit and influenced judicial thinking. But the major proposals have lain fallow, and in some respects they have been outmoded by the passage of time and the birth of new tensions in the judicial system.

Controversy about some of the Judicial Code's provisions is endless, especially those that concern the scope and exercise of the diversity jurisdiction of the federal courts. Such controversy reflects the historic and perhaps unresolvable concern that, as Chief Justice earl warren once said, "we achieve a proper jurisdictional balance between the Federal and State court systems, assigning to each system those cases most appropriate in the light of the basic principles of federalism."

Eugene Gressman
(1986)

Bibliography

Currie, David P. 1968–1969 The Federal Courts and the American Law Institute. University of Chicago Law Review 36:1–49, 268–337.

Wechsler, Herbert 1948 Federal Jurisdiction and the Revision of the Judicial Code. Law and Contemporary Problems 13:216–243.