Would the Kroger Rule Survive the ALI's Proposed Revision of [section] 1367?

Supplemental jurisdiction has been a treacherous area over the past decade. Previously, supplemental jurisdiction—then generally called pendent or ancillary jurisdiction—had been left nearly entirely to judicial development, but in 1989 the Supreme Court criticized several of its own prior cases for failing to make a “specific examination of jurisdictional statutes” to determine whether Congress had authorized the exercise of jurisdiction. Although the Court stated that it had “no intent to limit or impair” these already established cases, it declared that it would not extend them. It acknowledged that “the scope of jurisdiction conferred by a particular statute can of course be changed by Congress,” but in an effort to enable Congress “to legislate against a background of clear interpretive rules,” the Court declared “that a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties.” The next year, Congress acted quickly to fill the gap in federal jurisdiction that the Supreme Court had just revealed (or created).