Law Commons^™

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Scholarly Works

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia’s superior courts is not as demanding as the preliminary injunction standard in Georgia’s federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia’s courts; the moving party need not prove all four of …

Toil And Trouble: How The Erie Doctrine Became Structurally Incoherent (And How Congress Can Fix It), Alan M. Trammell

Scholarly Articles

The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.

This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp …

Forum Shopping And The Infrastructure Of Federalism., James E. Pfander

Faculty Working Papers

The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and …

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …