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EXPLORING FEDERAL DIVERSITY JURISDICTION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 13, 2016 

Serial No. 114–93 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

SEPTEMBER 13, 2016 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 64 

WITNESSES 

Charles J. Cooper, Partner, Cooper & Kirk, PLLC 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Joanna Shepherd, Professor of Law, Emory University School of Law 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 21 

Ronald Weich, Dean, Professor of Law, University of Baltimore School of 

Law 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Material submitted by the Honorable Trent Franks, a Representative in Congress 

from the State of Arizona, and Chairman, Subcommittee on the Constitution and 

Civil Justice. This material is available at the Subcommittee and can also be 

accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105301 

(1) 

EXPLORING FEDERAL DIVERSITY 

JURISDICTION 

TUESDAY, SEPTEMBER 13, 2016 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 11:06 a.m., in room 

2237, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, DeSantis, Gohmert, 

Jordan, Cohen, and Conyers. 

Staff Present: (Majority) Paul Taylor, Chief Counsel; Jake 

Glancy, Clerk; Perry Apelbaum, Staff Director & Chief Counsel; 

James J. Park, Minority Counsel; Matthew Morgan, Professional 

Staff Member; and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. The Committee hearing will come to order. I want 

to welcome all of you this morning. And I will now make an opening statement. 

In Federalist Paper No. 81, Alexander Hamilton described how 

Article III of the Constitution was designed to establish a system 

of Federal courts competent to the determination of matters of national jurisdiction. To that end, section 2 of Article III allows Congress to extend the jurisdiction of Federal courts to controversies 

‘‘between citizens of different states,’’ cases in which, by their interstate nature, implicated national concerns. 

Prior to the ratification of the Constitution, our new Nation was 

governed by the Articles of Confederation, which allowed States to 

impose rules that benefited their own commercial interests while 

hurting consumers nationwide by limiting the free flow of goods 

and services throughout the country. 

The Framers of our Constitution were clear that for America to 

succeed, the rules had to be changed to allow the development of 

a vibrant national economy that could sustain the needs of all of 

its citizens, in whatever States they might live. To that end, the 

Framers drafted a commerce clause and also a clause allowing Federal courts to hear disputes between citizens of different States so 

goods and services could cross State lines into new markets without the fear that local State officials would stack the deck against 

them. 
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James Madison, in the Virginia ratifying convention, defended 

Federal court diversity jurisdiction over all cases involving any citizens from different States as follows: ‘‘It may happen that a strong 

prejudice may arise in some States against the citizens of others 

who may have claims against them. We know that tardy and even 

defective administration of justice has happened in some States. A 

citizen of another State might not chance chance to get justice in 

a State court, and at all levels he might think himself injured.’’ 

Alexander Hamilton also explained in Federalist Paper No. 80 

that, ‘‘No man ought certainly to be a judge in his own case, or in 

any case—or any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the Federal courts as the proper tribunals for the determination of controversies between States and their citizens.’’ 

He elaborated that ‘‘in order to the inviolable maintenance of 

that equality of privileges and immunities to which the citizens of 

the Union will be entitled, the national judiciary ought to preside 

in all cases in which one State or its citizens are opposed to another State or its citizens. The power of determining causes between two States, between one State and the citizens of another, 

and between the citizens of different States is essential to the 

peace of the Union.’’ He had an opinion, didn’t he? 

Yet the Federal courts themselves, through various opinions, 

have narrowed Federal jurisdiction over cases involving citizens of 

different States such that the existence of citizens from two different States in a lawsuit, in and of itself, as contemplated by the 

text of Article III, section 2, does not confer Federal court jurisdiction. 

This hearing will examine whether Congress should statutorily 

expand Federal court diversity jurisdiction to more accurately reflect the expectations of the Framers of the Constitution, and to implement its Federal court diversity jurisdiction clause as originally 

understood. 

So with that, I will now yield to the Ranking Member for an 

opening statement. 

Mr. COHEN. Thank you, Mr. Chair. 

Once again, we’re holding a hearing that’s designed to make the 

case that Congress should tilt the playing field in favor of corporate 

defendants and against those harmed by their wrongdoing. Not exactly what I live by. Not exactly what I think a law should live by. 

We all should look to the people that are being hurt and injured 

and give them the benefit of the doubt whenever you can. In this 

case, we give the mighty and the powerful every opportunity to oppress, to injure, and to harm without compensation. 

The hearing title is seemingly innocuous, but the ultimate goal 

of this hearing seems to advocate for appealing the more than 200- 

year-old complete diversity requirement, a requirement that the 

first Congress created and the Supreme Court has repeatedly 

upheld since 1806. Doing so would do serious harm to consumers, 

Federal courts, and the fundamental balance between the national 

government and State sovereignty. 

Diversity jurisdiction is the jurisdiction of Federal courts to hear 

otherwise purely State law matters when the parties are citizens 

of different States. It’s rooted in Article III, section 2 of the Con-
3 

stitution, which provides in part that Federal courts have the 

power to hear controversy of citizens of different States. 

The diversity statute defines the scope of diversity jurisdiction 

more precisely, imposing various requirements, such as a minimum 

amount in controversial requirement and the requirement that 

there be complete diversity. That is that every plaintiff is a citizen 

of a different State than every defendant in order for a Federal 

court to exercise jurisdiction over a purely State matter. 

This hearing seems like old wine—and not old wine that has 

aged well, but old wine that you should throw out—in a new bottle. 

Earlier this year, for instance, we considered legislation that would 

have drastically altered another longstanding and related doctrine, 

the doctrine of fraudulent joinder in order to make it easier for 

Federal courts to exercise jurisdiction over State cases. 

I would oppose the attempt to repeal the complete diversity requirement for the same reasons I oppose the fraudulent joinder legislation: First, repealing complete diversity and thus making it 

easier to bring purely State law matters into Federal court would 

significantly increase the workload of the Federal judiciary. Not a 

bad thing for people to work hard, but not when there are not 

enough judges. 

This increase would impact all litigants in the Federal courts, 

not just those bringing diversity suits, or diminish the attention to 

resources Federal courts could give to every case on their dockets, 

criminal and civil. 

The increased workload would stem from the increased number 

of cases a Federal court would have to hear, should it become easier to file State law cases in Federal court. The burden, however, 

would be compounded by the high number of judicial vacancies 

that resulted from the Senate’s failure—absolute disregard for 

their duties constitutionally imposed—to act in a manner timely on 

presidential judicial nominations. And the first in line, I should remind, is Edward Stanton, Jr.—or the third, excuse me, who is the 

U.S. attorney in the Western District of Tennessee and first in line, 

been waiting 11 months for confirmation. 

Secondly, repealing the complete diversity requirement would 

upset the careful balance between the roles of State and Federal 

courts under our system of federalism. I find it ironic some conservers—who invoked phrases like ‘‘states’ rights’’ and ‘‘activist 

Federal judges,’’ and opposing things like voting rights or civil 

rights—are now seeking to empower the Federal courts to become 

substantial arbiters of State law, the power traditionally and rightly belonging to State courts. State courts should interpret and 

shape State laws in instances where Federal courts shape State 

laws are and should be the narrowest exceptions. 

Finally, the increased cost of potential complexity of litigating 

State law matters in Federal courts may result in ultimately denying those with meritorious claims their day in court. Plaintiffs have 

a right to choose the form in which their claims will be heard. Repealing the complete diversity requirement threatens to erode that 

right and add cost to the litigation State claims, the prospect of 

which could result in dissuading those with meritorious claims 

from even filing suit. 
4 

I’m deeply disappointed we are wasting our time on our limited 

time that we have in this Congress, in this Committee on this 

hearing. We should be focused on restoring voting rights. Right before an election, what are we doing about voting rights? ‘‘Nada.’’ 

Nothing. The courts are acting. Yeah, North Carolina went too far 

and joined. We’re doing nothing to let people vote, because we don’t 

want them to vote on the majority side. They want to impose restrictions to limit people’s power to vote and express their will. 

Criminal justice reform so important people are being deprived 

of their liberty and kept for longer periods of time than necessary 

at $30,000 a person. Did we deal with criminal justice reform? No. 

And due process for individuals who might be fleeing from a policeman. Have we dealt with that? No. Are we dealing with—and this 

wouldn’t be in this Committee, but in this Congress—funding to 

fight Zika? No. 

There’s so many matters that we have to come forth and could 

come forth in this Subcommittee, but we’re not dealing with them. 

We’re finding 200-year-old statutes to attack. Repealing a well-settled law does not seem to be one of the reasons we should be here 

and using our precious time. 

With that, I sayeth no more and yield back the balance of my 

time. 

Mr. FRANKS. And I thank the gentleman. 

And it appears that we don’t have any other opening statements, 

so—oh, I’m sorry, Mr. Conyers, forgive me. You’re just such a 

shrinking wallflower over there in the corner, nobody can see you. 

And so I now recognize the full Judiciary Committee Ranking 

Member, Mr. Conyers of Michigan, for his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. I’m honored to be recognized here. I’ve been around long enough to be known by most 

of the Members of the House. 

I take the position that the hearing focusing on Federal diversity 

jurisdiction whereby Federal courts may hear otherwise purely 

State law cases if the plaintiff and the defendant are citizens of different States. For more than two centuries now, the Congress has 

imposed and the Supreme Court has upheld the requirement of 

complete diversity, which mandates that every plaintiff must be a 

citizen of a different State than every defendant for a Federal court 

to have jurisdiction of the lawsuit. 

Unfortunately, based on the majority of witnesses’ testimony, it 

appears that this hearing may be laying the groundwork for the 

outright repeal of this longstanding requirement, and it represents 

the latest attempt by corporate interest to deny State court plaintiffs access to justice. 

As many of you may recall, I’ve long opposed any effort to repeal 

the complete diversity requirement for the following reasons: To 

begin with, expanding the scope of Federal diversity jurisdiction 

upends the careful, centuries-long balance between Federal and 

State sovereignty that current law has achieved. 

More than a decade ago, when we were considering the Class Action Fairness Act of 2005, which, among other things, eliminated 

the complete diversity requirement for certain class actions, I 

raised the concern then that the measure would undermine State 

law by substantially divesting State courts of the ability to inter-
5 

pret State law. State courts, after all, should be the final arbiters 

of State law. 

The complete diversity requirement and other limitations on the 

scope of diversity jurisdiction are designed to serve this important 

federalism interest. And repealing it beyond the class action context would only heighten my concerns. And in addition, eliminating 

the complete diversity requirement would increase costs and might 

make even litigation costs prohibitive for many plaintiffs with meritorious claims. 

As it is, the cost of litigation increases whenever Federal courts 

are called upon to decide State law questions because of the added 

complexity and time required to resolve such issues. Eliminating 

complete diversity would only increase these costs on litigants with 

a disproportionate adverse impact on plaintiffs who generally have 

fewer resources than the corporate defendants they typically face 

in court. 

Once again, our experience with the Class Action Fairness Act is 

instructed, as the law made it far more burdensome, expensive, 

and time consuming for injured persons to vindicate their rights 

under State law. So we should be wary of spreading this harm even 

more broadly. 

Finally, eliminating complete diversity would increase burdens 

on an already strained Federal court system. Even by the majority 

of witnesses’ own estimate, eliminating the complete diversity requirement would potentially add more than a half a million additional cases to the Federal court dockets every year. 

As it is, the Federal court system is already straining to meet its 

current caseload in light of significant unmet judicial resource 

needs. There are numerous judgeship vacancies, as well as an overwhelming need to create new judgeships that require congressional 

action. Accordingly, we should be especially wary of eliminating the 

longstanding complete diversity requirement, a requirement whose 

constitutionality the Supreme Court has repeatedly upheld for 

more than 200 years. 

And so I want to commend the Ranking Member, Mr. Cohen, for 

his statement, which I support. 

And I thank the witnesses for their presence and look forward 

to their testimony. 

Thank you, Mr. Chairman. 

Mr. FRANKS. Thank you, sir. I thank the gentleman. 

And without objection, other Members’ opening statements will 

be made part of the record. 

So I will now introduce our witnesses. Our first witness is Mr. 

Charles Cooper, a partner at the Cooper & Kirk Law Firm in 

Washington, D.C. Welcome, Mr. Cooper. 

Our second witness is Professor Joanna Shepherd, professor of 

law at Emory Law School. And welcome, Ms. Shepherd. 

Our third and final witness is Dean Ronald Weich, professor of 

law at the University of Baltimore. Welcome, Professor. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. And I’d ask each witness to summarize 

his or her testimony in 5 minutes or less. And to help you stay 

within that time limit, there is a timing light in front of you. The 

light switches from green to yellow, indicates that you have 1 
6 

minute to conclude your testimony. When the light turns red, it indicates that the witnesses’ 5 minutes have expired. 

And so before I recognize the witnesses, it is the tradition of this 

Subcommittee that they be sworn. So if you’d please stand. 

Do you swear that the testimony you’re about to give before this 

Committee is the truth, the whole truth, and nothing but the truth 

so help you God? 

You may be seated. 

And let the record reflect that all of the witnesses responded in 

the affirmative. 

So I would now recognize our first witness, Mr. Charles Cooper. 

Mr. Cooper, if you make sure that microphone is on. 

TESTIMONY OF CHARLES J. COOPER, PARTNER, 

COOPER & KIRK, PLLC 

Mr. COOPER. Good morning, Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee. I want to thank you for inviting me to participate in this morning’s hearing on the subject of 

diversity jurisdiction. And I’m honored to share my thoughts with 

you on the issues that are raised by this subject matter, particularly the issues raised by complete diversity, the doctrine of complete diversity. 

Forum selection is controlled in our system of litigation, both 

State and Federal, by plaintiffs. It is therefore no surprise and no 

accident that mass tort suits and other large-scale interstate disputes cluster in certain notoriously plaintiff-friendly State jurisdictions. 

The proliferation of complex interstate disputes in State courts 

has imposed massive, often bankrupting, costs on major American 

manufacturing corporations and has placed great burdens on the 

national economy. Large-scale interstate disputes almost always involve adverse parties of diverse citizenship. Yet the out-of-state defendants are often locked in State court, unable to remove those 

cases to Federal court. 

The cases cannot be heard in Federal court because the Supreme 

Court early on interpreted the diversity jurisdiction statute to require complete diversity of citizenship. Thus, the plaintiffs in many 

interstate disputes can keep their out-of-state defendants trapped 

in State court simply by naming at least one in-State defendant. 

Now, I want to make four quick points this morning about complete diversity. First, the diversity of citizenship clause of Article 

III, section 2 provides simply that Federal judicial power—and I’m 

quoting—Federal judicial power shall extend to controversies between citizens of different States. 

The literal scope of that plain language thus clearly embraces 

cases of minimal diversity, that is cases where any single plaintiff 

and any single defendant are citizens of different States. And the 

Supreme Court has held that complete diversity is not a constitutional requirement of the diversity clause. That is, Article III, section 2, is satisfied by minimal diversity case. 

Second, the requirement of complete diversity is at war with the 

animating purpose of the diversity clause of section 2, which was 

succinctly described by Hamilton in Federalist No. 80, previously 

noted by the Chairman, but I think it bears repeating. ‘‘The na-
7 

tional judiciary ought to preside in all cases in which one State or 

its citizens are opposed to another State or its citizens. For it is 

that tribunal which, having no local attachments, would be likely 

to be impartial between the different States and their citizens.’’ 

Now, that understanding of the purpose of diversity jurisdiction 

was echoed by virtually every supporter of the Constitution in the 

ratifying debates. James Madison put the point a little more bluntly in the Virginia convention. ‘‘It may happen that a strong prejudice may arise in some States against the citizens of others who 

may have claims against them. A citizen of another State might 

not chance to get justice in a State court, and in all events, he 

might think himself injured.’’ 

My third point is that the requirement of complete diversity can 

be traced to a Supreme Court decision in 1806 construing—actually, misconstruing the language of the original diversity provision 

in the 1789 Judiciary Act, which was materially identical to the 

language of the diversity clause in Article III, section 2. 

The decision called Strawbridge against Curtiss was issued by 

Chief Justice Marshall in a perfunctory six-sentence opinion that 

offered no reasoning in support of his texturally strained conclusion 

that a case—and this is quoting from that statute—‘‘between a citizen of a State and a citizen of another State somehow requires 

complete diversity rather than minimal diversity.’’ 

Marshall and the majority of the Court later came to the view 

that Strawbridge had been wrongly decided. And Marshall is reported to have—and I’m quoting from a Supreme Court case—to 

have repeatedly expressed regret to his fellow justices that the decision had been made. But the case has never been overruled. 

Thus, the statutory requirement of complete diversity of citizenship 

is not one that the first Congress truly intended to impose on the 

Federal judiciary in the first place, but it has nonetheless governed 

the Federal judiciary for over 200 years. 

My fourth point is a much closer and more controversial one 

than the others. It is that a very strong case can be made that a 

requirement of complete diversity cannot constitutionally be imposed by Congress, even if it were inclined to do so. And that 

strong case was made by a figure no less than Joseph Story in 

Martin against Hunter’s Lessee. 

My time has expired, and so, Mr. Chairman, I’ll refer the Subcommittee to my discussion of those constitutional issues in my 

written testimony. Thank you very much. 

[The prepared statement of Mr. Cooper follows:] 
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Mr. FRANKS. Thank you, Mr. Cooper. 

I will now recognize Professor Shepherd for 5 minutes. 

TESTIMONY OF JOANNA SHEPHERD, PROFESSOR OF LAW, 

EMORY UNIVERSITY SCHOOL OF LAW 

Ms. SHEPHERD. Thank you, Chairman Franks, Ranking Member 

Cohen, and Members of the Subcommittee for the opportunity to 

testify today. 

My research focuses on empirical analyses of the civil justice system and the judiciary. Today, I will discuss one of my recent studies that examines the impact on Federal court caseloads of an expansion in diversity jurisdiction. 

Research suggests that the bias recognized by the original Framers against out-of-state litigants and corporations persist today. 

Surveys of attorneys indicate that bias based on residency status 

or corporate status continue to be the primary rationales for seeking a Federal forum over a State forum in diversity cases. The intensifying politicization of State courts and State judicial elections 

likely account for some of the present judicial bias in State courts. 

Approximately 90 percent of State court judges must be reelected 

by voters, and in the last several decades, these elections have become more competitive and contentious with aggressive campaigning and significant spending. 

A substantial body of empirical research, including much of my 

own work, has shown that State judicial elections lead judges to decide cases in ways that will get them reelected, and this includes 

favoring in-State litigants who are voters over out-of-State litigants. 

Despite this evidence of bias, some commentators have argued 

that expanding diversity jurisdiction would place an impossible 

burden on the Federal courts. My study addresses this question by 

estimating the impact on Federal caseloads of replacing complete 

diversity with the minimal diversity standard required by the Constitution. 

To determine the impact of moving from a complete diversity 

standard to a minimal diversity standard, the study compiled data 

from several different sources. First, a team of independent researchers from Emory University collected and coded data from almost 3,600 complaints filed in the State courts in 2013. Additional 

data were compiled from Federal court caseloads, data on diversity 

cases in Federal courts, data on removal statistics to Federal 

courts, and data on State civil court filings. 

The results from the 3,600 coded complaints showed that about 

7.5 percent of the cases were removable under the current complete 

diversity standard. An additional 6.3 percent of the complaints 

would be removable under a minimal diversity standard. However, 

the majority of cases that satisfy the current complete diversity 

standard are not filed in Federal court, nor ever removed to Federal court. 

There are numerous reasons why diverse litigants that do not 

fear local bias may prefer to remain in State court. To mention a 

few: Many State courts have established positions in an area of law 

and defendants prefer the certainty of State court over the uncertainty of Federal court; some State courts and judges, such as spe-
30 

cialized business courts in the States, have special expertise that 

may make them more knowledgeable about certain areas of law 

than the Federal courts; defense counsel may have closer contacts 

and stronger relationships to both State court judges and attorneys; in cases involving individuals or small businesses, the convenience in lower cost of State court may deter removal to Federal 

court; and finally, a defendant such as a large local employer might 

assume that potential local bias in State court, either judicial or 

political, may actually work in its favor. 

Indeed, existing Federal data on removal statistics reveals that 

of the 7.5 percent of the complaints in our study that were removable under complete diversity, the majority, about 97 percent, 

would never be removed. 

Next, I applied the actual removal rate under complete diversity 

to the number of potentially removable cases under minimal diversity. My co-panelist questions whether this is a safe assumption to 

make, to assume that the percentage of removable cases that are 

actually removed under complete diversity will be the same percentage that is actually removed under minimal diversity. 

I agree that this is an assumption. Unfortunately, assuming is 

all we can do because we don’t live in a world with a minimal diversity standard. However, there’s no reason to think that the removal rate will be higher under minimal diversity. If anything, it 

should be lower. 

Because some of the new cases will have plaintiffs and defendants that share a domicile, the advantages of keeping the cases in 

State court that I just detailed will be even more likely to exist. 

Convenience, lower travel costs, favorable local bias, and close relationships with judges and attorneys, are more likely to convince 

these defendants that do not fear local bias to stay in State court. 

Thus, if anything, the percentage of cases that are actually removed should decrease under minimal diversity, not increase. 

But, assuming that the removal rate stays the same, the data revealed that approximately 13,900 additional cases would be removed annually to Federal court under a minimal diversity standard. This represents only a 7.7 percent increase in Federal court 

caseloads. 

And while this 7.7 percent increase seems like a small burden, 

the burden could be further reduced by increasing the amount in 

controversy requirement to a level above $75,000. Or alternatively, 

filling existing judicial vacancies or expanding the number of Federal District Court judgeships—which has happened ten times 

since 1960—would also alleviate this burden. 

Thank you again for the opportunity to speak to you today. 

[The prepared statement of Ms. Shepherd follows:] 
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Mr. FRANKS. Thank you, Professor. 

Mr. Weich. 

TESTIMONY OF RONALD WEICH, DEAN, PROFESSOR OF LAW, 

UNIVERSITY OF BALTIMORE SCHOOL OF LAW 

Mr. WEICH. Thank you. 

Good morning, Chairman Franks, Ranking Member Cohen, full 

Committee Ranking Member Conyers, and Members of the Subcommittee. My name is Ronald Weich. I’m the dean at the University of Baltimore School of Law, and I appreciate the opportunity 

to testify today. 

The subject of today’s hearing, Federal diversity jurisdiction, is 

very technical, but as has been noted by the Members of the Committee, it is very important. It implicates core principles in our constitutional system: State sovereignty, the proper functioning of the 

Federal courts, and questions of federalism. 

And the importance of the subject lead me to urge, above all, 

that the Committee proceed with great caution. This is potentially 

a powder keg for the Federal courts and for our system of federalism. And if the Committee wants to explore, as the title of the 

hearing suggests, Federal diversity jurisdiction, that’s fine. 

But to legislate in this area would require far more consideration. And specifically, I would urge that you consult with key 

stakeholders and subject matter experts across the spectrum. I am 

not, myself, a civil procedure professor. I don’t teach Federal jurisdiction. As the dean of a law school, I have a certain perspective 

that I’ll share with the Committee today, but I would urge that 

subject matter experts in this very technical area be consulted before any legislation is advanced. 

I want to address several issues, starting with Strawbridge 

against Curtiss, which Mr. Cooper referred to, the 1806 decision by 

Chief Justice Marshall. Mr. Cooper is a legendary litigator. I respect him greatly. But I fear that he has taken on mission impossible here trying to convince Congress to overturn a decision by 

Chief Justice John Marshall from 210 years ago. 

Not only has the Supreme Court not overturned, never seriously 

questioned the holding in Strawbridge that Article III requires 

complete diversity, but Congress has never come back to that question in a significant way. And I’ll describe that in some detail. 

You know, I looked—after reviewing Mr. Cooper’s testimony, I 

went back last night, and using my somewhat atrophied legal research skills, I wanted to see whether Strawbridge had been questioned in Supreme Court cases in these 210 years, and it really has 

not in any significant way. There are decisions from the 19th century, the 20th century, and as I cite in my testimony, the Exxon 

Mobil versus Allapattah case in 2005, where the Supreme Court 

says we adhere to the principle of complete diversity. 

Meanwhile, Congress, which could have imposed a different diversity standard, hasn’t done so. In fact, it’s done the opposite. The 

Congress has repeatedly raised the amount in controversy threshold to make diversity jurisdiction less available, and Congress has 

taken other steps to limit rather than expand Federal diversity. 

One exception to that is, of course, the Class Action Fairness Act 

of 2005, and that seems to me to be a cautionary tale. I’ve heard 
45 

that there are practitioners and judges who feel that that law allowed too many cases into Federal court. Perhaps there are defendants who fear that it doesn’t go far enough. And that might be a 

fit subject for consideration, but that’s far, far from the very dramatic step of changing complete diversity to minimal diversity. 

In my testimony, I point out that Congress has, for 210 years, 

largely restricted diversity jurisdiction for three reasons, which 

have been highlighted by Members of the Committee already: 

Number one, State sovereignty; number two, litigation costs; and 

number three, the proper functioning of the Federal courts. 

On State sovereignty, it must be emphasized that these are State 

law claims arising under State statutes or State common law, and 

it is quite a dramatic thing from the perspective of federalism to 

say that a Federal court not accountable to the citizens of a State 

should adjudicate those claims. And it’s really ironic. I know many 

Members of this Committee have long championed the principle of 

State sovereignty and States’ rights, and it seems odd that now you 

would move in a different direction in this area. 

I speak in my testimony about the Maryland judiciary, which I 

know well, which is very well equipped to handle these cases. And 

I know you have on this Committee, a former State court judge, 

Judge Gohmert, who knows well the State judiciary in Texas. 

I point out in my testimony that the exercise of diversity jurisdiction tends to increase complexity and costs. And I highlight, for example, the problems that are created when a Federal court has to 

certify a question to State courts. It can take years for that to be 

resolved. 

And then finally, the Federal courts, where, as has been pointed 

out, the caseload is increased, there are fewer judges. My distinguished co-panelist, Professor Shepherd, says it would only be 7.7 

percent of an increase in the caseload. That’s a dramatic increase 

for Federal judges. And I fear that if we’re simply assuming because the past is present, that that’s not going to be a very comforting assumption for Federal judges and administrators who 

would be looking at really an ocean of new cases coming into the 

Federal courts. 

So for all these reasons, I would urge the Committee to proceed 

with great caution before expanding Federal diversity jurisdiction. 

[The prepared statement of Mr. Weich follows:] 
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57 

Mr. FRANKS. Thank you, Mr. Weich. 

I would now thank all of the panel members for their testimony. 

We’ll proceed under the 5-minute rule with questions, and I would 

begin recognizing myself for 5 minutes. 

And Mr. Cooper, I’ll direct my first rather basic, sort of the 

blooming obvious award question to you. What do you think the 

implications are of your argument for federalism? And I’ll put it a 

little differently. Do you think that a minimum diversity standard 

is a violation of States’ rights and what the—that the Founders or 

Framers somehow got the wrong ballots? 

Mr. COOPER. Chairman Franks, I do not. And, you know, I come 

to this issue as somebody who, I think, has a reputation, if you 

will, but certainly a pedigree of being very, very protective of federalism, principles of federalism, State rights, not only in my early 

time in the Reagan administration Justice Department where some 

people called me the federalism cop of the Administration, but also 

in my private practice where I’ve represented a number of States 

and attempted in every way to zealously protect those reserved 

rights under the 10th Amendment. But my research into this subject matter has completely satisfied me that this is one of those 

provisions of the Constitution that quite carefully and deliberately 

created a path, if you will, into Federal—neutral Federal tribunals 

for interstate disputes. 

The necessity of a neutral Federal tribunal to take to resolve 

interstate disputes of national importance was viewed by all of the 

Founders as a necessary feature of the Federal Government’s 

power to regulate interstate commerce, and of all the other substantive provisions, Chairman Franks, that were designed to ensure a national commercial network. 

And so I believe, in fact, that our Federal system depends as 

much on the Federal courts having diversity jurisdiction over large 

interstate disputes as it does that this body, Congress, have regulatory power over interstate commerce. They go hand in hand. 

Mr. FRANKS. Yes, sir. Thank you, Mr. Cooper. 

And I’d now like to ask Professor Shepherd on this issue of local 

‘‘bias.’’ I know one of your areas of interest is the empirical research concerning bias in general, especially in contemporary State 

court litigation against out-of-state defendants. And what are the 

principal findings that you’ve had in that regard? 

Ms. SHEPHERD. Well, I could go on and on. This is a big area of 

my research and others as well. But the research generally shows 

that in the majority of States—there’s three States where judges 

have permanent tenure, like in the Federal system, but in the 

other 47 States, they don’t. And they’re selected and retained 

through a variety of methods: Elections, appointed, merit selection. 

But in all of these systems, there is a real problem of bias. There 

is a problem of certain kinds of judges being more likely to be put 

on the bench and then be retained based on the way that they vote. 

We find that the campaign money matters a lot for who wins and 

then who stays on the bench. We find that contributions from certain groups are very correlated with the way those judges vote. 

So judges that receive more money from group X are more likely 

to vote in favor of group X. And, you know, we’ve seen—in 

Caperton v. Massey, we saw the Supreme Court take this issue up 
58 

for the first time and recognize that there is a risk of real bias, but 

we still have recusal rates, recusal systems that are not really in 

place to protect the litigants. 

And so there’s just an overwhelming body of evidence that I 

could produce, you know, this high for you that would suggest that 

there’s a lot of bias in the State courts today. 

Mr. FRANKS. Well, thank you. 

I’m going to now turn to our Ranking Member and recognize him 

for 5 minutes for questions. 

Mr. COHEN. Thank you, sir. 

Professor Shepherd, you have been in favor of having additional 

Federal courts created and—that the backlog that we’ve got in the 

Senate, you mentioned in your testimony, that could end. Have you 

written any letters to the Members of the Judiciary Committee 

urging them to approve the District Court judges who are sitting 

before them? 

Ms. SHEPHERD. No, I have not. 

Mr. COHEN. Haven’t taken that step. 

7.7 percent is a pretty large increase really. I mean, they’re behind as is. How can you—that’s your figure. It could be greater, it 

could be lesser. Without the Senate acting and approving the nominees of the President or increasing judges, how could this work? 

Ms. SHEPHERD. No, I mean, I agree that given the current situation where we have a lot of vacant judgeships, that that does represent a problem. I mean, hopefully those vacancies will be filled. 

They have been slowly, little by little. 

In terms of expanding the number of judgeships, that has happened ten times since 1960. We were at a number down near 200, 

and now we’re at 667. So it’s not that, you know, crazy of an idea 

that we might increase that, but, of course, you’re right, we would 

have to not only create new judgeships but actually fill the vacancies as well. 

You know, I think another idea that might make a lot of sense 

and certainly has more of a background is increasing the amount 

in controversy from 75,000 to some higher amount. And then we 

would be limiting, not just the new cases that would satisfy the 

minimal diversity standard that would go forward, but also some 

of the current cases that satisfy complete diversity, there would be 

some of those that would no longer be removable as well. 

Mr. COHEN. Your statements about the State courts and the idea 

that sometimes they don’t take the cases to Federal court because 

they’ve got a judge they like or something or—and they can get a 

favorable—and the money has—and I don’t say it doesn’t. What’s 

your position on Citizens United? 

Ms. SHEPHERD. I think Citizens United has—I think it’s very— 

the way it treats judicial elections should be separated from the 

way it treats other elections, but I have written very publicly 

against Citizens United as it applies to judicial elections. 

Mr. COHEN. How about nonjudicial elections where people approve judges and might be influenced by the money they receive 

from certain groups? 

Ms. SHEPHERD. You know, that’s not—I mean, all my research is 

really just focused on the issues in State judicial elections, so I 

don’t really feel qualified to answer that. 
59 

Mr. COHEN. Just curious, have you been paid anything by the 

National Association of Manufacturers at any time in the past? 

Ms. SHEPHERD. They paid for the coding for the researchers 

that—it costs a lot to hire a team of researchers to code this. And 

as with a lot of my work, that—the actual coding projects are funded by some other group. Like a lot of my judicial work is funded 

by the American Constitution Society, the coding projects are. This 

coding project was funded by NAM. 

Mr. COHEN. And how much did NAM pay you for doing that 

work? 

Ms. SHEPHERD. Pay me or pay the researchers? 

Mr. COHEN. Paid you. 

Ms. SHEPHERD. I would have to look back through—it was 10 re- searchers. They make, you know, $12 to $15 an hour. I don’t recall 

the exact numbers. I would have to look back through—— 

Mr. COHEN. So you didn’t get paid, just the researchers got paid? 

Ms. SHEPHERD. The researchers got paid, and there was a small 

amount for my time, but the majority of it went to the researchers. 

Mr. COHEN. How much was that small amount? 

Ms. SHEPHERD. I would have to—I’m sorry, I don’t recall. 

Mr. COHEN. Was it as much as a $105,000 consulting fee from 

the American Tort Reform Association for your work there? 

Ms. SHEPHERD. No. 

Mr. COHEN. Wasn’t that much, okay. 

Ms. SHEPHERD. No. 

Mr. COHEN. You wrote an article, and I don’t know what it is, 

but the title of it intrigues me, about ‘‘Baseball’s Accidental Racism: The Draft, African-American Players, and the Law.’’ Would 

you tell me what that was about? I’m a baseball fan. 

Ms. SHEPHERD. Oh, yes. I’m going to probably get it wrong, and 

I apologize. It’s been over a decade. I was actually an econ professor when I wrote that. I was good friends with Nolan Ryan— 

with the scout, Red Murff, who was the—who drafted, I guess, or 

whatever the verb at that point was, Nolan Ryan. And he used to 

talk about how back in his day when he was a scout, things were 

completely different. And he found Nolan when he was 14, worked 

with him, had him out to his ranch every summer. I grew up in 

Texas. And when it came time for Nolan to sign with the team, he 

went with who Red said should be, you know, the best team. 

And then he said the draft just did away with all of that. There 

was no incentive to invest in a player because they could go—they 

could sign with any team. You had no say over that. And he said 

it’s really harmed a lot of the lower-income groups, including, at 

the time, a lot of the, you know, minority groups. 

And so it was just an empirical analysis confirming that the 

draft did have these negative impacts on certain lower-income 

groups because scouts no longer had the incentive to really work 

with and invest in the skills of players. 

Mr. COHEN. Thank you. There has been a decrease in AfricanAmerican players in the major leagues, and part of it’s because of 

opportunity costs that football and basketball seem to take. But I 

think it’s been an unfortunate situation, because it’s America’s 

sport, and it should be more reflective of our populous and Willie 

Mays’ great talents. 
60 

I yield back the balance of my time. 

Ms. SHEPHERD. Thank you. 

Mr. FRANKS. I will now recognize the Vice-Chairman of the Subcommittee, Mr. DeSantis, for 5 minutes. 

Mr. DESANTIS. Well, thank you, Mr. Chairman. 

Thanks to the witnesses. 

So, Mr. Cooper, is it the case that you think that if Congress 

were to legislate a minimal diversity, would that be constitutional? 

I mean, I guess, I know you would argue that it would be in terms 

of original principles, but we would have to get a favorable Supreme Court decision, they would have to reevaluate this, and the 

courts too? 

Mr. COOPER. No. Congressman DeSantis, I honestly don’t think 

there’s anyone who doubts Congress’ ability to legislate minimum 

diversity. The harder question is whether Congress would have authority to legislate complete diversity, if that’s what it decided to 

do. But the burden of my testimony is that it never did decide to 

do that in the original 1789 Judiciary Act. 

The language was very closely similar to Article III, section 2, 

and the interpretation in Strawbridge that that requires complete 

diversity is something that strains the language itself, and it adds 

a restriction that the language just doesn’t apply in certainly none 

of the history. And the Court itself, or the author of the Court and 

the majority of the members, later came to think it was wrongly 

decided. 

But I don’t think anyone doubts really that Congress has—because the Constitution itself does not require complete diversity. 

Congress has the ability to legislate minimal diversity. And it did, 

as, I think, the Ranking Member mentioned in his opening remarks, or perhaps it was Congressman Conyers, I am sorry, referencing CAFA, the Class Action Fairness Act, where complete diversity was significantly relaxed. 

Mr. DESANTIS. Now, a lot has changed since the 1789 Judiciary 

Act, particularly in the legal profession, particularly when you talk 

about some of the massive cases that can be brought. And I think 

you allude to this in your testimony, plaintiffs really can go anywhere in the country, so to speak, and find specific jurisdictions 

that have a track record of being very friendly to certain cases. I 

think you cited this one place in Illinois where the asbestos cases 

all were brought, even though most of the plaintiffs never have any 

connection to Illinois. 

So how would what you’re proposing change that dynamic, and 

would changing that dynamic be better for the economy? 

Mr. COOPER. Yes. Well, relaxing the complete diversity requirement would change that dynamic by allowing the removal of cases 

where there is diversity, minimal diversity, to Federal court. The 

original—I would submit to the Committee—Subcommittee, the 

original intendment and understanding of the purpose and the operation of the diversity clause in Article III, section 2. 

As you mentioned, there are a number of State court jurisdictions where literally hundreds of cases—for example, Madison 

County and the asbestos cases—fewer than one-tenth of the cases 

in those State—in those State courts in Madison County have—do 

the plaintiffs have anything to do—or the defendants, for that mat-
61 

ter—have anything to do with the jurisdiction, by way of citizenship anyway. 

And this would permit that kind of clear gaming of—and forum 

selection for the reasons that Professor Shepherd has outlined to 

be frustrated by ensuring that those cases, which are, you know, 

very large interstate disputes among very large concerns, could be 

removed to a Federal tribunal. 

Mr. DESANTIS. And is the, I guess, the implication that there are 

certain State courts that have developed kind of a reputation of 

being very conducive for certain types of cases, that if you remove 

that to an Article III court that it would be, I guess, less friendly 

for some of the lawyer-driven major litigation? 

Mr. COOPER. There is a reason that these cases—usually mass 

tort cases, but other kinds as well—these interstate disputes concentrate in particular State jurisdiction. There’s a reason for that. 

Plaintiffs’ lawyers select those jurisdictions. There’s a reason for 

that. I think we’ve heard testimony thus far to explain that phenomenon. 

And if the Federal jurisdiction in those areas was available on 

a minimal diversity basis, even if significantly restricted by an increased amount in controversy, for example, then I think those 

kinds of forum shopping abuses, really, would disappear. 

Mr. DESANTIS. Thank you. 

My time’s expired. I yield back. 

Mr. FRANKS. I thank the gentleman. 

I now recognize the Ranking Member of the full Committee, Mr. 

Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I thank the witnesses for their discussion here. 

I’m going to—since Professor Weich has not been asked a single 

question yet, I’ll break this void and ask him about the estimate 

made by his co-panelist, Ms. Shepherd, who estimates that 557,000 

cases would become removable, which is twice the current civil 

Federal caseload. She’s hoping that only 2.5 percent of them will 

actually get removed. But what would happen if more were removed? What, in your view, would be the impact on Federal courts, 

sir? 

Mr. WEICH. Right. Thank you, Congressman Conyers, for that 

question. First of all, as to the estimate by Professor Shepherd, she 

says assuming is all we can do, and I understand that it’s an assumption based on social science principles that she has applied 

here, but it is a very scary prospect that, based on that assumption, a change would be made to law that might increase the Federal caseload so dramatically. 

As you say, there are over half a million additional cases that 

she has found that could end up in Federal court. And one point 

to make here is that because these are multidefendant cases, if 

Congress were to move to a minimal diversity standard, any defendant could make that choice, even if other defendants didn’t 

want to see the case removed to Federal court. There would be 

more decisionmakers, and so you would see, I think, the reason to 

fear that there would be more than only 7.7 percent. 

But even if it were that, that is a very large increase for an already overstressed Federal court system. And, again, these are 
62 

State law cases. It’s not just the number. It’s the kind of cases. 

Federal judges aren’t principally responsible for knowing State law. 

They have to master it in particular cases here. Sometimes State 

law is unclear and they have to seek certification from the highest 

State court in which they sit. There’s tremendous complexity about 

which State law is to apply, whether supplemental jurisdiction attaches. 

For all these reasons—there are costs that are associated with 

increasing and expanding Federal diversity jurisdiction. And for 

these reasons, at the very least, Congress should move slowly, but 

in the end, I think it would be unwise to expand this category of 

Federal jurisdiction. 

Mr. CONYERS. Thank you so much. 

Does eliminating the complete diversity requirement raise any 

federalism concerns given that its elimination may allow Federal 

courts to play an even larger role in deciding purely State law 

claims? 

Mr. WEICH. It does. I assume that question was directed to me, 

Congressman Conyers, and I feel that it does raise State sovereignty concerns in a very significant way. And in part, there is 

not just, you know, the abstract balance between Federal and 

State. It’s how State courts are viewed, and the talk of bias and 

judicial hellholes, I think, really is a disservice to the hardworking, 

highly professional State court judges. 

You know, in 1789, you know, at the framing of the Constitution, 

the first Judiciary Act, and in 1806 when Chief Justice Marshall 

decided Strawbridge, the country was more factionalized. One had 

reason to question whether State courts had loyalty to the Federal 

Government. 

There is no question. We have fought wars to ensure allegiance 

to the Federal Constitution. And there is no doubt—and I tell you, 

every day I deal with Maryland State court judges who are deeply 

committed to doing their jobs and adhering to and enforcing the 

Federal Constitution and Federal rights. And there’s just no reason 

to think that the State judiciary, in general, is incompetent or biased or incapable of handling their responsibility to apply State 

law. 

Mr. CONYERS. Thank you. 

Related to that in a way is the consideration of the impact that 

might occur with the elimination of complete—of the complete diversity rule would have on the cost for litigants seeking to file 

claims in State courts. Wouldn’t that—could that be significant? 

Mr. WEICH. Yes. I mean, I’m interested to hear Professor Shepherd say that she thinks not all cases—not many cases would be 

removed, because many parties in State court appreciate the convenience and lower cost of litigating in the jurisdiction in which 

they sit. If all that is true, then expanding Federal jurisdiction and 

allowing defendants to remove cases to Federal court will, I think, 

increase costs and limit convenience and take disputes out of the 

local fora in which they belong. 

Mr. CONYERS. Thank you, sir. 

And I thank Chairman Franks. 

Mr. FRANKS. I thank you, sir. 
63 

And I would now recognize the gentleman from Texas, Mr. 

Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. And we appreciate the 

witnesses being here, and I do find it interesting too, the discussion 

about bias. 

I was wondering, Professor Shepherd, do you have empirical 

studies and data about bias in Federal court? 

Ms. SHEPHERD. No. I mean, there—I haven’t done any of that 

work, but there are some studies that mainly just looked at the relationship between ideology and the way Federal court judges rule, 

and as you can imagine, there is a linkage there. Judges appointed 

by Republicans tend to vote differently than judges that are appointed by Democratic Presidents. But importantly, it’s not because 

they don’t have to be retained or run for reelection or reappointment, it’s different, and it’s based more on this kind of fundamental 

predictable ideology than it is who’s giving money to the campaign. 

Mr. GOHMERT. It is interesting to observe, though. I can’t recall 

anyone ever appointed to Federal court, and especially the Supreme Court, that was touted as a liberal who took to the court 

and became immensely conservative, but certainly it’s happened 

the other way. 

But I—I do want to reiterate something Mr. Weich has said 

about having worked as a prosecutor but for much longer period as 

a civil litigator in both State and Federal courts, from MDL litigation, all kinds of litigation, and having appeared in front of different Federal courts and State judges. Having been a State district judge and a State appellate court judge, I found a tremendous 

amount of bias in Federal courts, and that is obviously why you 

have people who have learned how to game the Federal court system by filing multiple suits and hoping the case comes up in the 

Federal court judge they want and then dismissing others. I mean, 

it’s become quite a game. 

I also saw great disservice to people who had complaints about 

benefits from their employment that got removed to Federal court 

and there became an end of their righteous claim. There has—I’ve 

seen a great deal of injustice that was not occurring at the State 

court level that did occur at the Federal level. So I think that’s 

worth keeping in mind. 

And when people talk in terms of, gee, it’s terrible for States like 

Texas that elect their judges, much better if you have judges appointed, it seems like to me there is equal pros and cons. I have 

seen massive abuses from people who sought their appointment, 

played the political game, got their appointments, and then became 

far more political than somebody who had to stand for election and 

appear to be fair to all sides. 

So anyway, it’s interesting, the studies, the empirical data you 

refer to from State courts that doesn’t appear to be done for Federal courts, and yet experience shows there’s an awful lot of bias 

in Federal courts that is not being talked about. 

Well, I appreciate your testimony today. You’ve provided data 

that I’m going to have to look in and do some cross-referencing myself, but it’s an interesting issue, and I appreciate all of you bringing it to our attention. 

Thank you. I yield back. 
64 

Mr. FRANKS. And I thank the gentleman. 

And I now recognize the Chairman of the Judiciary Committee, 

Mr. Goodlatte, for 5 minutes. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. I appreciate 

your holding this hearing. I appreciate the testimony of the witnesses, particularly from my good friend, Chuck Cooper. It is great 

to see you here with us. And I’m going to just briefly share some 

of my thoughts about this issue. 

Federal court diversity jurisdiction might seem dry and technical 

at first blush, but it’s actually near the heart of the Founders’ vision of the body politic; namely, their understanding that Federal 

courts should hear cases between citizens of different States, especially when those lawsuits involve commercial or other subjects integral to the national economy. 

Currently, when a citizen from one State sues a defendant from 

another State, the interstate nature of that lawsuit gives Federal 

courts jurisdiction over the case. While the Constitution provides 

that Congress can grant Federal courts jurisdiction over all such 

cases, cases involving what lawyers refer to as minimal diversity, 

a glitch in current statutory law, allows trial lawyers to forum shop 

and keep their cases in the State courts they prefer if they sue a 

defendant from another State and simply also sue an additional 

local defendant in the State in which they’re filing the case. 

Not surprisingly, these rules have been abused by trial lawyers 

who sue local defendants, even though the plaintiffs’ claims against 

those defendants have little or no support in fact or law, because 

suing those local defendants allows trial lawyers to keep their case 

in a preferred State court forum. 

This Committee reported out and the House passed earlier this 

year the Fraudulent Joinder Prevention Act, which would limit this 

abuse. And just over a decade ago, I was the chief sponsor of the 

Class Action Fairness Act, which was enacted into law in 2005. As 

many people have noted, including current 7th Circuit Court of Appeals Judge Diane Wood, that legislation addressed the same problem in the context of class action lawsuits. 

In the conference report on that law, Congress was explicit about 

its view of the purpose of diversity jurisdiction and the need in 

multi-State class actions to close another aspect of this jurisdictional loophole. The conference report commented, for example, 

that one of the primary historical reasons for diversity jurisdiction 

is the reassurance of fairness and competence that a Federal court 

can supply to an out-of-State defendant facing suit in State court. 

The report went on to describe the many reasons the Constitution extends Federal court jurisdiction to lawsuits involving citizens of different States, even when questions of State law are at 

issue. Among these reasons are that citizens in one State might experience injustice if they were forced to litigate in out-of-State 

courts, that the availability of Federal courts would shore up confidence in the judicial system by preventing even the appearance 

of discrimination in favor of local residents, and that the option of 

going to Federal court would guard against the possibility that the 

State courts might discriminate against interstate business and 

commercial activities because diversity jurisdiction is itself a 

means of ensuring the protection of interstate commerce. 
65 

The conference report section entitled ‘‘National Class Actions 

Belong in Federal Court Under Traditional Notions of Federalism’’ 

makes clear that it’s unfair to have one State court dictating to 49 

others what their laws should be, that it’s unfair to maintain a system that allows State court judges to dictate national policy, and 

that the existing system often allowed one State court to issue rulings that flatly contradicted the law of another implicated State. 

The Committee report on the Class Action Fairness Act concluded as follows: ‘‘The Federal courts are the appropriate forum to 

decide most interstate class actions because these cases usually involve large amounts of money and many plaintiffs, and have significant implications for interstate commerce and national policy. 

By enabling Federal courts to hear more class actions, this bill will 

help minimize the class action abuses taking place in State courts 

and ensure that these cases can be litigated in a proper forum.’’ 

Today, this hearing is about whether those same principles 

should apply more broadly to provide for justice and fairness in 

even more context and situations involving multiple States and national interests. So I thank the witnesses again for their contribution today. 

I yield back. 

Mr. FRANKS. And I thank the gentleman, and couldn’t have said 

it better myself. And this concludes today’s hearing. And I want to 

thank all of our witnesses. I want to thank the audience and certainly the Members. And without objection, all Members will have 

5 legislative days to submit additional written questions for the 

witnesses or additional materials for the record. 

And with that, this hearing is adjourned. 

[Whereupon, at 12:09 p.m., the Subcommittee was adjourned.] 

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