Beyond Bias in Diversity Jurisdiction

56 Pages Posted: 5 Mar 2019 Last revised: 13 Nov 2019

Date Written: February 13, 2019

Abstract

The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state-court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. In my view, both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem is the centrality of the bias rationale, which has obscured more pertinent considerations in diversity debates. I aim to shift the debate about diversity jurisdiction away from the bias rationale and toward matters relevant to modern litigation, including facilitating multistate aggregation. I show that moving beyond bias allows for more honest and legitimate debate of the propriety and scope of diversity jurisdiction, and I identify promising areas for diversity reform in light of that new focus while remaining faithful to the Constitution.

Keywords: Diversity, Jurisdiction, 1332, Aggregation, Bias, State Bias

Suggested Citation

Dodson, Scott, Beyond Bias in Diversity Jurisdiction (February 13, 2019). 69 Duke Law Journal 267 (2019), UC Hastings Research Paper No. 317, Available at SSRN: https://ssrn.com/abstract=3334132

Scott Dodson (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

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