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International Civil Litigation and Dispute Resolution
University of Pennsylvania School of Law
Burbank, Stephen B.

I. Subject Matter Jurisdiction: Alienage (Diversity) and Federal Question

Civ Pro 101: What is Subject Matter Jursidiction?

· State courts are courts of general jurisdiction, empowered to hear just about every type of civil case. That is significantly different from federal courts, which are courts of limited subject matter jurisdiction (result of the Madisonian Compromise).

· Very little of the business of federal courts is within their exclusive subject matter jurisdiction, which has always been regarded as a prerogative of Congress. Major exceptions are federal antitrust, patent, and bankruptcy.

· Whether a federal court can as a matter of subject matter jurisdiction depends upon two sources of authority: (1) Article III of the Constitution conferring judicial power on courts in the U.S. in designated categories AND (2) statutory grant of jurisdiction.

· Only certain categories, as the founders wished the new nation to speak with one voice

· Subject matter jurisdiction is not waivable or subject to party agreement. Federal judges have an independent duty to ensure that they have subject matter jurisdiction.

· Both in domestic diversity and alienage jurisdiction, most of the law applied by federal courts is state law.

Relationship between U.S. law and international law:

§ Treaties: Most unproblematic source of international law for international civil litigation

§ Self-executing vs. non-self-executing:

§ Self-executing treaties automatically have status as federal law binding in domestic litigation

§ Non-self-executing treaties require legislative implementation to be binding in domestic litigation in U.S. litigation. Note that even though they require legislative implementation, violation of the treaty will still likely violate international law

§ Executive agreements: similar to treaties, but recent developments may mean they have little impact in domestic litigation.

§ A treaty has the effect of superseding any prior statute. However, a subsequent domestic federal statute may also supersede it. There is a rule that presumes that Congress does not legislative in contravention of international law (Charming Besty)

§ Customary International Law: Whether customary international law (defined as general consistent practice of substantially all concerned states followed out of a sense of legal obligation) is automatically legally binding in U.S. courts or only when accepted as with federal common law. (Sosa)

A. Alienage Jurisdiction

Definition:Allows suits between U.S. plaintiff and alien defendant in federal court.

Rationale: Lawsuits involving aliens and Americans were thought to carry the risk of offending foreign states—and thus had the potential of interfering with U.S. foreign relations, so Founders wanted U.S. courts to speak with one voice on such cases.

Statutory & Constitutional Grant:

Art III grant of “cases between a state, or citizens thereof, and foreign states, citizens or subjects.” SC has never decided whether there must be complete diversity for Alienage diversity jurisdiction. BURBANK confident that the SC would find, differently from domestic DJ, that complete diversity is not required.
Statutory grant of 28 USC § 1332(a)(2). (NB Hercules – an attempt to avoid the traditional interpretation.)

Removal: §1441 – Must be able

Hercules v. Dynamic Export Corp. (SDNY, 1976)

Aliens on both sides: no diversity jurisdiction


§Del. & Bahamas v. NY. NY party wanted to join Iran in counterclaim—does subject matter jurisdiction exist?

§The argument was made by the parties that the Bahamian corporation should be treated as a De. corporation based on 1332(c).


The presence of aliens on both sides of the controversy will defeat diversity jurisdiction

Burbank and Born

§Court does not discuss 1332(a)(3) providing jurisdiction in suits involving citizens of different States and in which citizens of foreign states are additional parties. If we were following a Scalia view of statutory interpretation we would find jurisdiction. The basis for saying there is no jurisdiction is the supposed statutory requirement of complete jurisdiction.

§Therefore, its purpose and its language is that there should be jurisdiction in this case.