Volume 88, Number 2

May 2013

Burford Abstention and Judicial Policymaking

Kade N. Olsen

The Supreme Court held in Burford v. Sun Oil Co. that federal courts, through an exercise of equitable discretion, could abstain from asserting subject matter jurisdiction over challenges to state administrative agency orders. Since Burford, the Court has failed to reconcile abstention with either Congress’s subject matter jurisdiction statutes or the Constitution, which both arguably require federal courts to exercise jurisdiction when the subject matter is proper. Instead of relying on equitable discretion, I believe federal courts can and should ground Burford abstention in constitutional and statutory restrictions on the types of power that federal courts may exert. Article III of the Constitution and the federal question, diversity, and removal jurisdiction statutes require federal courts to abstain from asserting jurisdiction when doing so would require federal courts to take nonadjudicative action.