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August 11, 2006

Worst Statute in the World for August 10th

In what I hope will be a weekly feature, and with a nod to Keith Olbermann for the idea, I'd like to announce this week's Worst Statute in the World.  (Nominations are encouraged -- email me.)

The Class Action Fairness Act is this week's winner.  No, not because of any political views, but because of this little provision:  "a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the state court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order" (emphasis added).  Why is it so bad?  Literally, it says that if a district court rules on a motion to remand a class action to state court, the party who loses must wait 7 days to appeal, but then can wait forever to appeal.

Two circuits have looked at the statute and have decided the provision can't mean what it says.  The Ninth Circuit and the Tenth Circuit have both said that the word "less" must mean "more."  What's more, the Ninth Circuit just denied (with a dissent) a call for rehearing en banc on this interpretation.

Thus, two courts have by judicial interpretation made the statute make sense -- but they've also created an enormous trap for the unwary litigant, as Howard Bashman has noted over at law.com.

Today's worst statute in the world: where "less" probably means "more" litigation.

August 11, 2006 | Permalink


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