Tuesday, October 10, 2006
First, over the last decade, tort filings in state court are down [around four to five percent].
Second, despite the shrinking pool of state-court filings, diversity-based tort removals from state to federal court have not commensurately declined over the last decade. One would think fewer cases means fewer removals. Instead, defendants are removing nearly the same number of diversity tort cases despite shrinking state court tort dockets.
Third, cases removed from state to federal court account for an increasing proportion of the federal courts' docket. . . .
Finally, and most importantly, remand rates are increasing over time. . . . In recent years, more than 20% of diversity tort cases removed to federal court were remanded to state court. That's a substantial increase over the remand rate in the early 1990s.
It's an important point -- plaintiffs are of course not alone in abusive practices. That said, I wonder if some portion of the increasing rate in removals has to do with what are at least questionable attempts to defeat diversity in the first place (that might be increasing). Who really believes that in a products case the local sales representative is going to be in the case by the time it gets to trial? Those cases will often be removed, even with a pretty strong chance of remand. It would be interesting to see some more details on at least a sampling of the cases analyzed
But that's not to take away from the overall point of the column, which is a reminder that attempts to eliminate abusive and wasteful practices need to be party-neutral.
I'll look forward to the full work to be published in the Journal of Empirical Legal Studies. Update: In an e-mail, Trevor points out that the article actually came out last November, and that the column came from the summer of 2005. He reports that the full article does explore Alabama cases in a somewhat more detailed way but that the analysis is not definitive.