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"The Growth of Erroneous Removal"?

On Bill Childs's TortsProf Blog, I've been debating Trevor Morrison in the comments section about his paper with Theodore Eisenberg, "Overlooked in the Tort Reform Debate: The Growth of Erroneous Removal," 2 J. Empirical Leg. Stud. 551 (2005):

Professor Morrison: I've read your article, and discussed it with Professor Eisenberg when we appeared on a panel together in May; Professor Eisenberg made me a generous offer to provide me the underlying data that I have not yet had the opportunity to follow up upon.

There are a number of places where the article makes sweeping claims unsupported by the data.

For example, your article concludes, and I quote, "Substantial empirical evidence establishes that, especially among state cases removed on diversity grounds, erroneous removal is a significant and growing phenomenon." Your empirical evidence doesn't establish this for the reasons I state, unless one defines "erroneous removal" to mean something other than erroneous removal. Given the existence of the word "remand" to accurately convey what your data is actually counting, it's hard to see how you're not asking the reader to draw conclusions by using the non-neutral adjective "erroneous."

Your paper also says: "That is, the high rate of erroneous removal in Alabama may be best attributed to knowingly wrongful removal, not simply to honest uncertainty about the law." Again, the data doesn't support this, and, though your data permits an alternative test that would be sufficient (if not necessary) to demonstrate that the problem is one of legal uncertainty, it doesn't test it. (It was this test I discussed with Professor Eisenberg.) It was an offensive statement that could have been avoided had the authors spoken to any attorney who has done at least a dozen removal motions and accounted for what's actually happening on the ground.

Not once does the paper recognize the limitation on your data that remands are frequently erroneous (and thus characterizing a remand as an "erroneous removal" assumes the answer); not once does the paper recognize the growing problem of fraudulent joinder and the controversy in the federal courts on how to address it, much less the other half-dozen-or-so controverted questions in federal jurisdiction that the Supreme Court has addressed. The one policy recommendation the paper makes, for fee-shifting, was possible to be tested for efficacy, yet it wasn't tested; other policy possibilities (such as giving courts more explicit power to scrutinize fraudulent joinder or re-establishing minimum diversity to simplify the federal jurisdiction question) are ignored entirely with the exception of language in the CAFA Senate Report that was mocked without addressing the underlying argument. So I stand by my earlier disappointment that the paper is so unjustifiably anti-reform, and that its authors have been using data that doesn't support their conclusions to argue against needed reforms and to bad-mouth defense counsel.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.