Overlooked in the Tort Reform Debate: The Growth of Erroneous Removal

31 Pages Posted: 9 Aug 2005

See all articles by Theodore Eisenberg

Theodore Eisenberg

Cornell University, Law School (Deceased)

Trevor W. Morrison

New York University School of Law


Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties' resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10% to about 8,900 per year. By 2003, removed cases comprised over 30% of the federal diversity docket. The percentage of removals ultimately remanded to state court increased significantly to about 20% in 2003, with the remand rate exceeding 50% in some districts. Thus, as more cases purporting to satisfy diversity jurisdiction were being removed to federal court, and just as removals were occupying an increasing part of the federal docket, removed cases were being remanded to state court at increasing rates. Erroneous removal is a growing phenomenon that should be addressed as part of serious consideration of tort reform.

Keywords: Removal, remand, tort reform, litigation, procedure

Suggested Citation

Eisenberg, Theodore and Morrison, Trevor W., Overlooked in the Tort Reform Debate: The Growth of Erroneous Removal. Journal of Empirical Legal Studies, 2005, Available at SSRN: https://ssrn.com/abstract=770865

Theodore Eisenberg

Cornell University, Law School (Deceased) ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Trevor W. Morrison (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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