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Tuesday, March 19, 2019

Racial bias and diversity jurisdiction

Scott Dodson's new article (forthcoming in Duke L.J.) came at a good time, as I began diversity jurisdiction (and the rationales for it) Monday and continue on it tomorrow and have presented some of his ideas in class. Scott argues that outsider bias does not justify diversity jurisdiction, while considering other reasons for having (and perhaps expanding) that jurisdiction. This includes suggestions that diversity jurisdiction might alleviate racial bias in state courts.

Reorienting diversity jurisdiction around racial bias (regardless of in- or out-of-state) offers a strong new argument against the complete-diversity requirement, as illustrated by New York Times v. Sullivan. Sullivan sued four Alabama-based African-American civil rights leaders (Shuttlesworth, Lowery, Seay, and Abernathy) who had signed the Times ad; this prevented removal to federal court, by destroying complete diversity and adding non-removable forum defendants. The complete-diversity requirement made no sense in Sullivan even on the local-bias rationale: Having a local defendant did not cure the bias when: 1) the local was an African-American who was functionally an outsider in 1960 Alabama and 2) there was an obvious outsider (The Times) waiting to be hosed.

The racial turn adds to this position. There unquestionably was bias against the African-American defendants in state court because of their race (the trial court allowed Sullivan to enforce the judgment against the four men). Scott's argument suggests their presence in the case, rather than keeping the case in state court, should have been the basis to make it (and cases like it) more readily removable.

Posted by Howard Wasserman on March 19, 2019 at 06:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink

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