1 The doctrine was first announced in Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941), in which the Supreme Court ordered the federal district court to abstain from deciding an important constitutional question pending resort to a state court for determination of the meaning and applicability of unclear state law.Google Scholar

2 Given the existence of concurrent jurisdiction and a growing tendency for plaintiffs to choose state forums in jurisdictions in which federal court dockets are especially crowded.Google Scholar

3 411 U.S. 389 (1973). See Comment, Palmore v. United States: The Interrelationship of Article I and Article III of the Constitution, 23 Am. U.L. Rev. 119 (1973).Google Scholar

4 Redish's argument regarding the Framers' intention is based solely upon the text of the Constitution, rather than upon contemporaneous practice and understanding. On the basis of the textual evidence, Redish concludes: “Ultimately, neither version of the argument is conclusive” (p. 40). For more substantial discussions of the question, see Henderson, Gordon D., Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957);Bernays Wiener, Frederick, Courts-Martial and the Bill of Rights: The Original Practice (pts. 1–2), 72 Harv. L. Rev. 1, 266 (1958);Morgan, Edmund M., The Background of the Uniform Code of Military Justice, 6 Vand. L. Rev. 169 (1953).Google Scholar

5 See Morgan, supra note 4, at 175, 183–4; Luther C. West, Command Influence, in James Finn, ed., Conscience and Command: Justice and Discipline in the Military 73–135 (New York: Random House, 1971); Remcho, Joseph, Military Juries: Constitutional Analysis and the Need for Reform, 47 Ind. L.J. 193 (1972).Google Scholar

6 Arts. 22–27, Uniform Code of Military Justice, 10 U.S.C. £ 822–27 (1976). See also Sherman, Edward F., The Civilianization of Military Law, 22 Me. L. Rev. 3 (1970).Google Scholar

7 I fail to understand why Redish distinguishes between cases involving a potential loss of personal liberty and cases involving other types of punishment; I would think that his theory would require article III judges for all military cases.Google Scholar

8 Art. 15, Uniform Code of Military Justice, 10 U.S.C. £ 815 (1976). See also Note, The Unconstitutional Burden of Article 15, 82 Yale L.J. 1481 (1973);Imwinkelried, Edward J. & Gil-ligan, Francis A., The Unconstitutional Burden of Article 15: A Rebuttal, 83 Yale L.J. 534 (1974).Google Scholar

9 See Daniel Walker, ed., Military Law 136 (New York: Prentice-Hall, 1954): “As a practical matter, courts-martial operate on a semi-permanent basis. … Of course, frequent changes are made in the membership of these courts.”.Google Scholar

10 80 U.S (13 Wall.) 397 (1872), in which the Court held that state courts had no power to issue writs of habeas corpus for the release of persons held under federal authority.Google Scholar

11 Hart, Henry M. Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, at 1401 (1953).Google Scholar

12 Neuborne, Burt, The Myth of Parity, 90 Harv. L. Rev. 1105 (1977).Google Scholar

13 His method for solving this problem consists of what might be called an “enclave” approach: mark out the boundaries of the legitimate state interest, and give the federal courts free rein outside those boundaries.Google Scholar

If an appropriate resolution of the tensions of judicial federalism is to be achieved, a careful examination of specific state interests and the practical effect the exercise of federal judicial authority might have on each must be undertaken. Once these interests have been described, it will be necessary to determine the means for assuring their preservation that will provide the widest possible latitude for the federal courts to perform their role within the federal system. [P. 4].Google Scholar

Apart from the practical difficulties facing a court trying to evaluate the importance of specific state interests and devising means for insuring their preservation, Redish's method cannot resolve situations in which legitimate and significant state interests conflict with the premised role of the federal courts as the fundamental protectors of federal rights. The most controversial example of such an irreducible conflict in recent years is the exercise of federal habeas corpus jurisdiction resulting in collateral review of state court decisions. It should be mentioned that Redish does not discuss the “tensions in the allocation of judicial power” arising out of federal habeas corpus practice.Google Scholar

14 Ch. 1 is derived in part from Redish, Martin H. & Woods, Curtis E., Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45 (1975). Redish continues to maintain that “a congressional limitation on federal court power to review the actions of federal officials, combined with the lack of state power to do likewise [under Tarble's Case], would seem to deprive a litigant of the independent judicial forum required by due process” (p. 27). For an opposing view, see 1981 Supplement to Hart and Wechsler's the Federal Courts and the Federal System, ed. Paul M. Bator, Paul J. Mishkin, David L. Shapiro, & Herbert Wechsler, at 119–20 (2d ed., Mineola, N.Y.: Foundation Press, 1973).Google Scholar

Ch. 5 owes much to the same article, as well as to Redish, Martin H. & Muench, John E., Adjudication of Federal Causes of Action in State Court, 75 Mich. L. Rev. 311 (1976).Google Scholar

Ch. 7 is described as a “slightly revised version” of Redish, Martin H. & Phillips, Carter G., Erie and the Rules of Decision Act: In Search of the Appropriate Dilemma, 91 Harv. L. Rev. 356 (1977).Google Scholar

Ch. 10 is also described as a “slightly revised version” of Redish, Martin H., The Anti-Injunction Statute Reconsidered, 44 U. Chi. L. Rev. 717 (1977).Google Scholar

Ch. 11 is derived in part from Redish, Martin H., The Doctrine of Younger v. Harris: Deference in Search of a Rationale, 63 Cornell L. Rev. 463 (1978).Google Scholar

Ch. 12 was published previously as Redish, Martin H., Revitalizing Civil Rights Removal Jurisdiction, 64 Minn. L. Rev. 523 (1980).Google Scholar

15 Assuming arguendo the existence of black letter law in the field of federal jurisdiction.Google Scholar

16 41 U.S. (16 Pet.) 1 (1842), in which the Supreme Court held that in diversity cases federal courts were not bound to follow state court decisions regarding “questions of a more general nature” such as commercial law, thus limiting the sphere of operation of the Rules of Decision Act to “local statutes and local usages.”.Google Scholar

17 Especially noteworthy in this regard is Redish's summary of Eleventh Amendment theories of Justices Brennan and Marshall, and Professors Field, Tribe, and Nowak, in ch. 6.Google Scholar

Redish's single—and extremely minor—departure from his otherwise stringent fairness to opposing views occurs, in my judgment, in ch. 11, where he describes one of the interests to be served by “Our Federalism” as the “desire to avoid affronting state judges by questioning their competence and/or willingness to enforce constitutional rights” (p. 298) (emphasis added). His phrasing suggests that, in Younger v. Harris, Justice Black wished to avoid personal insult to state judges. This phrasing trivializes the real institutional concern for fostering respect for the state judiciaries as competent institutions for the adjudication of constitutional rights—a concern Redish correctly described in his earlier article on the same subject as “the desire to avoid slighting state courts by questioning their competence or willingness to enforce federal constitutional rights.” Redish, The Doctrine of Younger v. Harris, supra note 14, at 465–66 (emphasis added).Google Scholar

18 Especially noteworthy in this regard are his explanations of Cox Broadcasting Corp v. Cohn, 420 U.S. 469 (1975); North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156 (1973); and Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930), in ch. 8.Google Scholar