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The federal abstention doctrines govern the narrow circumstances under which a district court can decline to hear a case even though it has proper jurisdiction. One of those doctrines—Burford abstention—has generated a morass of confusion over when it applies and what goals it is meant to achieve. To find a way out of the morass, this Comment looks at contemporaneous developments in doctrines of federal court review—and at the procedural history of Burford itself—to pinpoint the precise problem that Burford abstention was created to solve. It argues that the Burford Court was wary of federal courts exercising jurisdiction in cases like Burford where states had organized their systems of government in ways that did not neatly parallel the federal separation of powers. When state courts have been empowered to exercise complex administrative agency–style discretion, federal courts are not a comparable substitute. Judges in the federal system, who have life tenure, may not be able to adequately step into the policymaking shoes of state court judges, who are, for better or for worse, more democratically accountable.

This Comment proposes a straightforward test—the “Judicial Discretion Test”—that courts can use to determine whether Burford abstention is appropriate. The Test uses judicial discretion as a proxy for policymaking authority. Under the Judicial Discretion Test, if a state court judge hearing the case would have significantly more discretion under the state law at issue than a federal court judge would have when hearing a comparable case under federal law, the federal court should abstain in favor of state court. This Test is more administrable than the current framework under which courts perform ad hoc analyses, often cherry-picking particular facts from the original Burford case and looking at how closely those facts match the ones in the case at hand. As this Comment shows, it also better vindicates each of the concerns that motivated the original creation of the Burford abstention doctrine.

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