Another Look at Skelly Oil and Franchise Tax Board

Research output: Contribution to journalArticle


In recent years, members of the Supreme Court of the United States have twice cited Skelly Oil Co. v. Phillips Petroleum Co. for the proposition that the federal Declaratory Judgment Act, which Congress enacted in 1934, is “procedural only” and does not enlarge the scope of federal jurisdiction. By this, they probably mean that Skelly allows no case into federal court in the presence of the act that could not find its way there in its absence. But whether this assertion is accurate today, or was accurate in 1950 when Justice Frankfurter wrote Skelly, is not entirely clear. Depending on how one reads Skelly and how one defines “enlargement,” the act as currently interpreted may in fact “enlarge” the scope of federal jurisdiction, and it may even have done so under Skelly. In particular, Skelly may construe the act to allow certain cases to be heard in federal court earlier than they might otherwise have been heard, and at the instance of the party that may otherwise have been the defendant in a conventional action for coercive (i.e., nondeclaratory) relief. This may constitute a form of jurisdictional “enlargement,” depending on how one defines the term. Given Skelly’s status as an icon of federal jurisdiction, issues such as this merit attention. In particular, we should ask ourselves what Justice Frankfurter meant by Skelly, if the Court pays homage to Skelly in the breach, and what, if anything, is left of the case.

Original languageAmerican English
Pages (from-to)53-81
JournalAlbany law review
Issue number1
StatePublished - Jan 1 2016


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