Get rid of diversity jurisdiction

Conservatives in Congress want to downsize government including the federal judiciary.  Most particularly, these folks want to get the federal judiciary out of the daily lives of our citizens, and they also want to empower the states to function without federal judges mucking with state law.  If the conservatives who are behind this movement are intellectually honest then there is a real easy way to begin accomplishing that task.  Moreover, this easy way won’t gut the ability of the federal judiciary to function in those spheres that even  conservatives agree are proper.

Congress could do away with diversity jurisdiction.  Sure, that would mean that some corporations would  find themselves in “hell holes” where judges and juries are overly sympathetic to plaintiffs.  On the other hand, there are many other jurisdictions that are not particularly plaintiff-friendly.  For example, Nebraska doesn’t allow punitive damages for plaintiffs in most cases.

Diversity jurisdiction for the federal courts once made sense.  No so anymore.  I would be happy to trade diversity jurisdiction for an end to (or even a lessening of) judicial sequestration.  And, even if that trade-off were not possible, ending diversity jurisdiction would allow the federal judiciary to concentrate its reduced resources on federal questions that really matter.*  This is a “conservative” idea that intellectually honest legislators of all stripes could embrace.

Any takers?


*Why in the hell should I know the slightest thing about the comparative negligence law of Nebraska?

4 responses

  1. I would be happy to give back to the Nebraska state courts all the cases fishing for punitive damages that get filed in my court this side of the Mighty MO where state law allows punitive damages …but trying diversity cases are a ton of fun….get to see some terrific small town lawyers who know little about the federal courts but are very good trial lawyers…but you position makes a ton of sense.

  2. Mark,

    I LOVE it that cases I might otherwise see slide over to see you because of the punitive damage limitation in Nebraska. And, I think that is sorta the point. The whole damn diversity thing provides a great opportunity for gamesmanship–removal fights, forum shopping, choice of law issues that become metaphysical, personal jurisdiction haggling–and all for what? To provide you and I with amusement? That is certainly as good a reason as any other, but probably not sufficient.

    But, back to your point. From a judge’s point of view, trying diversity cases is fun. Since I was a country lawyer (Lexington, then a town with a population of about 6,000), it was the occasional diversity case that got me into federal court. (Indeed, with the help of a really good plaintiff’s lawyer from Kearney, in federal court on diversity jurisdiction grounds, we once rung the bell for the (then) largest settlement in Nebraska history for a car accident resulting in a single death.) So, I am particularly appreciative of your point about seeing good lawyers from the hinterlands as a result of diversity jurisdiction. Alas, all good things must come to end.

    All the best, my dear friend.


  3. Mark,

    Correction: We got a million bucks for a non-death case. A really smart and nice retired guy (a former farmer) run over by a truck while sitting in a truck on I-80. Terrible brain damage. His day-in-the-life video showed him referring to his wife as “Mom” and crying because he wanted to leave the mental institution where he would spend the rest of his life. To make it even sadder, the docs said his life expectancy was now longer because his medical care would be better. I still remember our wonderful, descent, pretty, hard-working client (the wife), and the really good lawyer on the other side, who when he completed her deposition and she had left, looked across the table at us, smiled, and said simply, “shit.”

    All the best.


  4. I LOVE that other, great federal district court judges are also reading this blog. (And hopefully others outside of Iowa, too.)

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