Bad Judicial Activism and Liberal Federal-Courts Doctrine: A Comment on Professor Doernberg and Professor Redish

JUDUCIAL ACTIVISM IS often portrayed as a liberal vice. This perception is wrong both historically and, as Professor Redish argues, 3 currently as well. The federal judiciary has been and still is an activist institution, working with both substantive law and jurisdictional rules to achieve its own policy goals. It has done this in statutory, constitutional, and common-law matters. Specifically, the Supreme Court of the United States has actively-shaped the jurisdiction of the federal courts in a restrictive and generally conservative manner. Professors Doernberg4 and Redish attack this last form of activism by the federal courts, activism in shaping their own jurisdiction. The conclusion common to the two papers, arrived at by different routes, is that when Congress has spoken regarding the scope of federal jurisdiction, the federal courts have no business tinkering with Congress\u27s plan.5 Thus, Professor Doernberg would discard the well-pleaded complaint rule6 that limits the federal question jurisdiction of the lower federal courts, and Professor Redish would eliminate abstention of all sorts\u27 and, presumably, all other prudential limitations on federal jurisdiction