The Elastics of Snap Removal: An Empirical Case Study of Textualism

Abstract

This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was the party of the president who appointed the judge. Female judges and young judges were also more likely to reach textualist outcomes. Cases involving torts were substantially more likely to be removed even though the statute raises a pure legal question upon which the subject matter of the case should have no bearing. Our most surprising finding was the impact of a judges’ undergraduate and legal education: the eliteness of the educational institution was positively correlated with removal for judges appointed by Republicans, but negatively correlated for judges appointed by Democrats. This disordinal interaction was especially striking since there was no party effect among judges who attended non-elite institutions. In addition to the aforementioned variables which were significant, several variables that were not predictive are also discussed; these include race, seniority, state court experience, and the prospect of multi-district case consolidations.

Keywords: snap removal, pre-service removal, removal, forum defendant rule, diversity jurisdiction, textualism, purposivism, statutory interpretation, judges, judicial experience, judicial backgrounds