\\server05\productn\N\NYU\82-4\NYU402.txt unknown Seq: 1 13-SEP-07 11:33 ARTICLES FINISHING A FRIENDLY ARGUMENT: THE JURY AND THE HISTORICAL ORIGINS OF DIVERSITY JURISDICTION ROBERT L. JONES* This Article argues that diversity jurisdiction was intended to funnel politically sig- nificant litigation into the federal courts principally because federal officials would have the power to dictate the composition of federal juries. All existing accounts for the origins of diversity jurisdiction ultimately rely upon putative differences between the state and federal benches for their explanations of the jurisdiction’s origin. This emphasis on the bench is anachronistic, however, because the jury possessed far more power than the bench to decide cases in eighteenth-century American courts. American juries during this period customarily had the right to decide issues of law as well as fact and were largely beyond the control of the bench. The Framers saw state court juries—independent bodies of citizens with almost unfettered power to resolve legal disputes—as one of the greatest dangers in allowing ordinary citizens too much control over the governance of the nation. By wresting adjudicative power out of the hands of state court juries and bestowing it upon federal juries whose compositions could be tightly controlled by federal offi- cials, diversity jurisdiction accomplished the Constitution’s overarching purpose of checking the operation of “unrestrained” democracy in the states. Once the federal courts were established, federal officials controlled the composi- tion of federal juries in several ways. In most districts, federal marshals dictated the composition of federal juries by hand-selecting jurors of their choice. In addition, Congress ensured that the political, economic, and social characteristics of federal juries would differ dramatically from their state counterparts by providing that the federal courts would draw their juries overwhelmingly from the urban, commercial centers of the nation. The state courts, by contrast, drew their juries predominantly from the agrarian populations living outside those centers. It is highly unlikely that this pervasive control over the composition of federal juries was an unintended consequence of the Constitution. Instead, as this Article argues, the evidence strongly suggests that the federal officials’ control over the composition of federal juries constituted the single most important impetus behind the creation of diversity jurisdiction and a significant rationale for the establishment of the lower federal courts. * Copyright 2007 by Robert L. Jones, Assistant Professor, Northern Illinois Univer- sity, College of Law. J.D., New York University School of Law; A.B., University of California, Berkeley. I want to thank Helen Hershkoff, William Nelson, Gary Rowe, Jack B. Weinstein, Richard Bernstein, Burt Neuborne, Ty Alper, Lewis Bossing, and Wendy Vaughn for their advice and support in this and all endeavors. I would also like to thank Jennifer Hainsfurther, Matthew Dreyer, Dan Wachtell, Derek Kershaw, Kimberly Spoerri, and the members of the New York University Law Review for their excellent editorial work, and James Folts and the staff of the National Archives office in New York City for their assistance. All mistakes, regrettably, are my own. 997 \\server05\productn\N\NYU\82-4\NYU402.txt unknown Seq: 2 13-SEP-07 11:33 998 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997 INTRODUCTION ................................................. 999 R I. FAILURES OF THE EXISTING ACCOUNTS OF THE ORIGINS OF DIVERSITY JURISDICTION .................. 1006 R A. Deficiencies in the Traditional “State Bias” Account for the Origins of Diversity Jurisdiction ............. 1006 R B. The “Friendly Revolution”: The Modern Pro-Creditor Accounts for the Origins of Diversity Jurisdiction .......................................... 1010 R 1. The Historical Background of Friendly’s Account ......................................... 1011 R a. Post-Revolution Debt and Depression ...... 1011 R b. Agrarian Unrest and the Paper Money Debate...................................... 1012 R 2. The Superiority of Friendly’s Pro-Creditor Account over the Traditional “State Bias” View ............................................ 1015 R C. Failures of the Pro-Creditor Accounts ............... 1017 R 1. Myopic Emphasis on Commercial Issues and Creditor Constituencies.......................... 1017 R 2. Overreliance on the Federal Bench .............. 1019 R II. APPREHENSION OF STATE COURT JURIES: THE PRINCIPAL MOTIVATING FORCE BEHIND THE CREATION OF DIVERSITY JURISDICTION AND THE LOWER FEDERAL COURTS ................................................. 1026 R A. The Powers and Prerogatives of Eighteenth-Century American Juries ..................................... 1026 R 1. The Roots of the American Jury in English Law............................................. 1026 R 2. The Jury as a Means of American Colonial Intransigence .................................... 1028 R 3. American Juries at the Time of the 1787 Convention ..................................... 1031 R B. Direct Democracy and the Framers’ Apprehension of State Court Juries ................................... 1037 R C. Unsuccessful Efforts to Eviscerate the Jury’s Power in Federal Court .................................... 1044 R III. THE HISTORICAL ORIGINS OF DIVERSITY JURISDICTION AND FEDERAL CONTROL OVER THE COMPOSITION OF FEDERAL JURIES ........................................ 1049 R A. Control over the Composition of Federal Juries by U.S. Marshals ....................................... 1055 R B. Juror Selection in the New York Circuit Court ...... 1063 R \\server05\productn\N\NYU\82-4\NYU402.txt unknown Seq: 3 13-SEP-07 11:33 October 2007] THE ORIGINS OF DIVERSITY JURISDICTION 999 C. Control of the Geography of Federal Jury Pools and Its Impact on the Political, Economic, and Social Composition of Federal Juries ....................... 1070 R 1. The Traditional Jury of the Vicinage ............ 1070 R 2. Repudiation of the Vicinage Principle for Federal Courts .......................................... 1072 R 3. Control over the Composition of Federal Jury Pools............................................ 1077 R CONCLUSION ................................................... 1091 R APPENDIX: METHODOLOGY .................................... 1097 R INTRODUCTION Many judges and practitioners today view diversity jurisdiction as an anomaly. The bulk of the federal courts’ dockets today are com- prised of cases implicating the interpretation and enforcement of fed- eral law.1 Diversity jurisdiction,2 which requires the federal courts to interpret and enforce state or foreign law in the adjudication of dis- putes between citizens of different states or nations, has been widely criticized as an unnecessary distraction from the federal courts’ pri- 1 During fiscal years 2002 to 2006, fifty-six percent of the civil cases filed in the United States District Courts involved federal question controversies between private litigants and another nineteen percent involved the United States government as either plaintiff or defendant. ADMIN. OFFICE OF THE U.S. COURTS, 2006 JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR 22 (2007), available at http://www.uscourts.gov/judbus2006/completejudicialbusiness.pdf. During the same period, diversity cases comprised twenty-five percent of the total number of civil filings in the district courts and twenty percent of the total civil and criminal filings. See id. at 22, 26 (listing total number of diversity, civil, and criminal cases filed in district court each year from 2002 to 2006). 2 In this Article, I use the term “diversity jurisdiction” to refer to the federal courts’ jurisdiction over both claims between citizens of different states and claims between citi- zens of foreign states and American citizens. See U.S. CONST. art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity . between Citizens of dif- ferent states . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”). Scholars who want to distinguish the courts’ jurisdiction over cases involving citizens of different states from that involving foreign citizens and American citi- zens typically refer to the former as “diversity” jurisdiction and the latter as “alienage” jurisdiction. See, e.g., Kevin R. Johnson, Why Alienage Jurisdiction? Historical Founda- tions and Modern Justifications for Federal Jurisdiction over Disputes Involving Nonci- tizens, 21 YALE J. INT’L L. 1, 3–5 (1996) (arguing for “analytically distinct” treatment of alienage and diversity jurisdiction). Because this author believes that the underlying pur- poses for their creation were essentially the same, both will be analyzed as diversity juris- diction for the purposes of this Article. \\server05\productn\N\NYU\82-4\NYU402.txt unknown Seq: 4 13-SEP-07 11:33 1000 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:997 mary functions.3 As recently as 1978, legislation has been introduced in Congress that would have eliminated diversity jurisdiction entirely.4 Despite its marginalization in the minds of many modern scholars and practitioners, however, diversity jurisdiction is fundamental to our understanding of the historical origins of the lower federal courts. Ironically, the primary impetus behind the creation of these courts may have had little to do with “federal questions,” i.e., the interpreta- tion and enforcement of federal