Document Type
Article
Abstract
ASARCO Inc. v. Kadish is the most important Supreme Court decision addressing the adjudication in state courts of federal claims that Article III’s case-or-controversy requirements would bar lower federal courts from hearing. But there are two serious problems with the reasoning of ASARCO: one involving an error of omission and the other an error of commission. ASARCO’s error of omission is its apparent assumption that a party barred from asserting a federal claim in federal court because of a lack of redressable Article III injury caused by the conduct complained of should face no barriers to obtaining relief on the claim in state court other than state justiciability doctrines. In fact, although courts have not yet recognized it, such a party and claim likely fall outside the invoked federal law’s zone of interests. The state court therefore likely should dismiss for failure to state a claim on which relief may be granted. ASARCO’s error of commission is its indication in an unelaborated dictum that the Supreme Court possesses asymmetrical appellate jurisdiction over state-court judgments on issues of federal law in circumstances where Article III’s case-or-controversy requirements would have barred lower federal court jurisdiction. The dictum suggests that, in these circumstances, the Court may entertain an appeal by a defending party against whom an adverse judgment was entered but not by a claiming party whose federal claim was rejected. In fact, ASARCO’s reasoning implicitly recognizes that the Court may review all lower court judgments on issues of federal law issued by courts with adjudicatory jurisdiction, regardless of whether the appealing party is a claiming or defending party.
Recommended Citation
John Greabe,
ASARCO Delenda Est,
128
W. Va. L. Rev.
717
(2026).
Available at:
https://researchrepository.wvu.edu/wvlr/vol128/iss2/10