113 Pages Posted: 24 Jun 2011
Date Written: 1993
Over the past several years, the legal community has given a great deal of thought to the problems created by multiparty, multiclaim, multiforum litigation. A flurry of activity and an outpouring of writing have resulted, including proposals for substantial changes in both substantive and procedural law. Congress legislated a number of the recommendations made by the Federal Courts Study Committee when it passed the Judicial Improvements Act of 1990. Additional legislation concerning the handling of complex cases is pending, and further action by Congress over the next several years is probable, in view of the burden that complex litigation imposes on the courts and the widespread belief that Congress can alter the federal and state court systems to provide swifter and more just relief in complex cases.
“Reverse removal,” is one idea that the legal community is considering as an element of a new regime for fair and efficient resolution of complex litigation. Reverse removal is not, as one might first think, a more cumbersome way to refer to remand, the device by which cases or claims that have been removed to a federal district court are returned to the state court from which they came. It is a heretofore nonexistent procedure by which cases that were initiated in or removed to federal court could be sent to a state court for consolidation and adjudication with related state court cases.
From my first reading of the American Law Institute (ALI)’s reverse removal proposal, I reacted negatively, feeling suspicious of the changes it would effect, concerned about state court handling of such complex litigation, and disturbed that many parties would lose the benefits of federal courts in complex diversity and federal question cases. I am, moreover, wary of huge consolidations of cases, with their concomitant concentrations of judicial power, and concerned about federal intrusion into the operation of state courts. Having channeled my concerns into a scholarly mode, this article identifies and analyzes the aspects of the proposed procedure that are most troubling.
This article has several objectives. It considers the fundamental questions of the constitutionality, wisdom, and conformity with our federalism of both the innovation of reverse removal in general and the proposed ALI Complex Litigation Project version in particular. In Parts I-III, the article identifies the objectives and underlying assumptions of the Proposal and examines whether its premises are sufficiently well founded to warrant the costs that the Proposal would entail. The article also questions whether the specific terms of the Proposal are well suited to fulfill the Reporters' ends, being neither too narrowly drawn nor unduly expansive. Next, in Part IV, the article considers whether there is a constitutional basis for reverse removal, setting out the ALI Project Reporters' argument in support of the constitutionality of the scheme and offering my reactions and counter-arguments. Part IV considers whether the proposed procedures would violate the Tenth Amendment or Article III of the Constitution, improperly curtail federal district court jurisdiction, or unlawfully delegate congressional power to the federal and state judiciaries. Part IV also analyzes whether the Proposal violates Fifth Amendment equal protection principles by treating complex cases differently than cases not affected by the Proposal.
Having considered the issues raised by the judicial activity that would precede the proposed transfer to state court, Part V of the article turns to issues that would arise after a transfer to a state court. This Part considers whether the Proposal contemplates an empowerment of state judiciaries, with respect to personal jurisdiction and other procedural powers, that is beyond Congress' power to effect, and whether the novel ways in which the Proposal would permit the state and federal court systems to interact are constitutional and workable.
The number and difficulty of the issues is so great that one article cannot exhaustively explore them all. This article attempts a compromise between breadth and depth which illuminates these issues, and is intended to enliven the debate, not to end it.
Keywords: removal of causes
JEL Classification: K40, K41, K00, K10
Suggested Citation: Suggested Citation