The Abstention Doctrine Today

Since 1941, when the Supreme Court decided Railroad Commission v. Pullman Co.,' abstention has become an accepted procedure in the federal courts. By abstention I refer to "Pullman abstention," which comes into play when a federal court is faced with an unclear issue of state law whose resolution might avoid or modify a federal constitutional question. I am not going to discuss the quite different doctrine, embodied in the Younger v. Harris decision,2 counseling against federal interference with state criminal proceedings, although that doctrine as well is sometimes termed "abstention." Pullman abstention has as its purpose avoiding federal court error on state law questions that arise in federal constitutional cases and that are within the federal courts' pendent jurisdiction. Two risks are thought to result from a federal court ruling erroneously on such state issues: The court may needlessly have to reach a federal constitutional issue that a proper interpretation of state law does not in fact present; or the federal court may interfere with legitimate state policy by interpreting state legislation more narrowly than the state judiciary would interpret it. The mechanism for avoiding federal error in the interpretation of state law is to remit the parties to the state courts for decision of the unclear state law question. The parties retain the right to return to the federal forum for decision of the federal issues in the case, 3 unless the state question proves dispositive of the controversy. Indeed, the federal court usually retains jurisdiction of the lawsuit while the parties pursue their state law remedies. 4