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Wednesday, June 03, 2020

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

Posted by Howard Wasserman on June 3, 2020 at 10:39 AM in Article Spotlight, Civil Procedure | Permalink


I should say, I think the validity of saying that a squirrel is not an animal is dependent not just on whether there is some pre-enactment problem that didn't involve squirrels, but on whether one can point to some sense of the word 'animal,' or pattern of use of the word 'animal,' outside the statute, that doesn't include squirrels. Likewise, I would want to ask if there are any contexts where someone would say, when a lawsuit has been filed but a defendant has yet to be served, that the answer to "has the defendant been properly served" isn't "no," but "it's too soon to say; I can't answer yes because, well, they haven't been served, properly or otherwise, but it would be proper to serve them in a week, so you can't say they haven't been properly served either." I'm not sure that "properly" can't perform the odd linguistic office of making a verb that seems to look to the present look out into some point in the future, but that's what I'd want to know; it doesn't suffice for me that the problem that motivated the addition of this language has nothing to do with permitting snap removals.

Posted by: Asher Steinberg | Jun 3, 2020 5:30:53 PM

The beauty of Sam's argument is that it is not atextual, because mischief (distinct from purpose) exists before the text rather than beyond the text. So saying "properly" means "no time left" is not so different than saying a squirrel is not an animal or a sheep is cattle.

I hope to elaborate on this argument in a longer piece. I have to think about any 1446(b) problem. I think I would say that the action is not removable until the service period on any forum-defendant has expired, so 1446(b)(3) controls. That speaks of 30 days after receipt of some "other paper" from which it can be ascertained that the case is removable. Not sure if that can bear the weight of "ok, he can't serve the forum D anymore, now I have 30 days."

Posted by: Howard Wasserman | Jun 3, 2020 2:54:20 PM

I was prepared to dismiss your proposal as atextual and wicked, but it seems pretty clever. Is there any problem, though, with 1446(b) and the removal period? I suppose service periods are generally shorter than 30 days.

Posted by: Asher Steinberg | Jun 3, 2020 1:45:03 PM

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