Thursday, August 9, 2007

A few links

A few items of recent note:

  • The Fourth Circuit recently issued a decision applying the relitigation exception to the Anti-Injunction Act in Bryan v. Bellsouth Communications, Inc.  Bryan follows the same two-bites-at-the-apple approach I noted in an earlier post, and is subject to the same criticisms.  although in a reversed-remand scenario that raised different comity concerns.

  • Having passed the most significant legislative reform of complex litigation in American history, advocates of the Class Action Fairness Act have now set their sights on more technical battles of statutory interpretation and application. One of the most important post-enactment questions with regard to CAFA concerns the burden of jurisdictional proof. In the broadest sense, the issue is who bears the burden of proving the existence (or nonexistence) of the federal district court's subject matter jurisdiction under the new statute. Traditionally, the party who desires to maintain the suit in federal court always has had the obligation of demonstrating the court's authority to hear the case. Shifting the burden so that the other side (which, as a practical matter, means shifting the burden to the plaintiff, since a challenge to the federal court's authority occurs most often after the defendant has removed the case from state court and the plaintiff has asked that it be moved back) to prove that federal jurisdiction is lacking constitutes a sea-change of enormous proportions. Yet, this is exactly what the vast majority of courts—and every circuit court to consider the question—has found Congress intended. In this paper, I describe (in Part I) how a statute that is entirely silent on the question of jurisdictional proof under CAFA has come to spawn two different burden of proof debates, producing, most remarkably, two opposing answers. In Part II, I then consider all of the arguments credited by courts that have adjudged Congress intended to shift the burden of proof onto the party opposing federal jurisdiction. I will endeavor to show that these arguments rest on a number of highly suspect doctrinal and empirical assumptions. Against the prevailing view, I argue that there are sound reasons to conclude that CAFA does not shift any of the burden of jurisdictional proof from the party who desires to maintain the suit in federal court.
  • Finally,  two of our colleagues have joined the Law Professor Blogs  Network.  Welcome to Larry Bates and Kristin Simpson at the Secured Credit Blog.   --RR

August 9, 2007 | Permalink | Comments (4) | TrackBack (0)