The Million Dollar Diversity Docket

87 Pages Posted: 10 Nov 2020 Last revised: 25 Jan 2021

See all articles by Steven Gensler

Steven Gensler

University of Oklahoma College of Law

Roger Michalski

University of Oklahoma - College of Law

Date Written: November 9, 2020

Abstract

What would happen if Congress raised the jurisdictional amount in the diversity jurisdiction statute? Given that it has been almost 25 years since the last increase, we are probably overdue for another one. But to what amount? And with what effect? What would happen if Congress raised the jurisdictional amount from the current $75,000 to $250,000 or, say, $1 million?

Using a novel hand-coded data set of pleadings in 2900 cases, we show that the jurisdictional amount is not a neutral throttle. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others. Our findings thus provide new guidance for Congress to consider when evaluating proposed changes to the amount threshold.

We build from our data to explore different ways Congress could use the amount in controversy lever to adjust the diversity docket, ranging from traditional techniques like incremental inflation-adjustments to radical experiments with lotteries or replacing the amount in controversy minimum with a maximum. Our analysis of the options highlights the normative choices Congress makes when deciding which cases to bless and curse with a federal forum. Thus, our study also provides a new window into the longstanding debates about the existence and reach of diversity jurisdiction. We hope our empirical work will inform these debates and enable a new wave of scholarship on the basic functions and functioning of the federal diversity docket.

Keywords: Federal Courts, Subject Matter Jurisdiction, Civil Procedure, Access to Justice, Diversity Jurisdiction, Jurisdictional Amount

Suggested Citation

Gensler, Steven and Michalski, Roger, The Million Dollar Diversity Docket (November 9, 2020). Available at SSRN: https://ssrn.com/abstract=3727643 or http://dx.doi.org/10.2139/ssrn.3727643

Steven Gensler

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7889 (Phone)

Roger Michalski (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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