A Revisionist Theory of Abstention

This article offers a straightforward model for identifying cases in which abstention threatens federal rights – and so is inappropriate and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be – and only should be – available where necessary to protect federal rights. For example, if fact-finding is not critical to a federal plaintiff’s case, initial litigation in state court· followed by U.S. Supreme Court review should satisfy federal concerns. Part III explains at some length how application of the revisionist theory would be consistent with most of the Supreme Court’s abstention precedents, while providing a more satisfactory explanation for those precedents which would give meaningful guidance to lower courts and litigants as to when abstention is appropriate. Finally, the concluding section answers some of the potential questions raised by the revisionist theory, including whether the revisionist theory requires too much ad hoc decisionmaking in abstention cases, and whether direct U.S. Supreme Court review is adequate in any given case to protect federal rights.