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Monday, March 01, 2021

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

Posted by Howard Wasserman on March 1, 2021 at 10:46 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink


This is not a textualist solution. All your argument really boils down to is that you have a purposive reason for reading "properly served" to mean something other than what it ordinarily means. Until you can show that reasonably literate speakers of English (or at least lawyers) would ever use "properly served" to mean "properly served or who haven't been served yet but are in the future after removal, during the service period," your interpretation is atextual. I would also remark that the classic mischief examples you and Bray talk about involve reading unintended applications out of a general term. Well, we can point to lots of cases where people do that, e.g., where people say "animals" and mean some relevant subset of animals. I'm not sure we often say things like "you can't do x if y is the case" and mean "you can't do x if y is the case, or, alternatively, if it becomes the case at some point in the future, after you do x," or "you can't do x until you wait for a period of time, that makes sense in light of the purposes of this prohibition, to see if y becomes the case."

Posted by: Asher Steinberg | Mar 1, 2021 1:19:07 PM

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