Tuesday, August 9, 2011

Now on JOTWELL: 28 U.S.C. 1447(d) and Review of Remand Orders

Currently running on the Courts Law section of JOTWELL is my review of a recent article by James E. Pfander (Northwestern), Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court, 159 U. Pa. L. Rev. 493 (2011). The review is entitled A New Solution to an Old Problem: Section 1447(d) and Appellate Review of Remand Orders. It begins:

It may not be the most headline-grabbing issue on the Supreme Court’s docket. But it has occupied more of the Court’s attention during the past half-decade than abortion, affirmative action, the Commerce Clause, or the Second Amendment. It is 28 U.S.C § 1447(d)’s command that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This apparent ban on appellate review has generated an awkward line of cases, beginning with Thermtron Products v. Hermansdorfer in the 1970s, which struggle to determine when § 1447(d) “means what it says.” In the Court’s most recent decisions on the issue, several Justices have penned separate opinions voicing their frustration with current doctrine. Enter Jim Pfander and his recent article Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court. Pfander expertly diagnoses what is wrong with the jurisprudence surrounding § 1447(d) and, more importantly, offers a new solution to this long-standing puzzle.



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I'm confused. I have a 1999 citation that quotes 28 U.S.C §1447(d) as including, "which shall effect the removal and the state court shall proceed no further unless and until the case is remanded", and yet, when I look this up I cannot find these words in the current statute or the history ? Help?

Posted by: Rod | Oct 8, 2011 10:13:41 AM

Thanks for your comment, Rod. I think the language you're quoting is in 28 U.S.C § 1446(d).

Posted by: Adam Steinman | Oct 25, 2011 9:58:57 AM

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