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The division of the American legal process into two complete and distinct judicial systems, state and federal, has the potential to lead and, indeed, has led to some problems and disputes between courts at the state and federal level. The recent tug-of-war between a Louisiana state judge and a United States District Judge over the custody and school for two school children in Louisiana was a much publicized case of a jurisdictional dispute. Such disputes between state and federal courts over their proper jurisdiction typically do not generate the media coverage of this Louisiana dispute and involve issues of greater subtlety than it.

Some of the more typical issues or problems arise when a claim involves both a right created or protected by state law and one created or protected by federal law. In such an event, if the complaint is first brought in the federal court, the federal court can maintain jurisdiction over the state issue as well as the federal issue by asserting either its ancillary or its pendent jurisdiction. But an assertion of ancillary or pendent jurisdiction is discretionary. An alternative, especially if the state claim is based on an unsettled issue in the state law, is for the federal court to abstain until the state issue has been fully adjudicated.

Another source of problems has been the attempt to litigate a right created under one authority (either state or federal) in the court of the other authority's jurisdiction. Certainly the United States Constitution recognizes that federal courts will hear cases involving claims based on state law. This diversity jurisdiction now requires that the federal court, in effect, act as if it were a state court by applying the law of the particular state in which it sits.

The reverse of this situation is when a state court is asked to hear a case in which the claim is based upon federal law. As Professor Charles Alan Wright has said, “Unless it has made federal jurisdiction exclusive in terms, the state courts have concurrent jurisdiction with the federal courts. Thus a state court may entertain an action even though it is entirely based on a federal claim.” Yet state courts have sometimes attempted to avoid hearing a case or deciding an issue based upon federal law by claiming lack of jurisdiction. Such attempts frequently involve rights created under controversial federal laws or rights protected under regionally unpopular federal laws.

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