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Zachary D. Clopton, Catch and Kill Jurisdiction, _ Mich. L. Rev. _ (forthcoming 2022), available at SSRN.

Good procedure scholarship identifies, explains, justifies, and critiques a judicial and litigation phenomenon, offering a framework to understand, change, or support what courts, parties, and rulemakers are doing. Great procedure scholarship describes the phenomenon with a pithy and memorable name or metaphor.

Behold Zachary Clopton’s Catch and Kill Jurisdiction.

Clopton draws his framework and label from catch-and-kill journalism, in which a publication purchases exclusive rights to a story for the purpose of not publishing it. The purchaser catches the story by taking it from other publications, then kills it by refusing to put the story out. The move protects the story subject from embarrassment (or worse) and denies the public potentially important information.

A court catches a case by exercising jurisdiction over an apparent state-law claim through a judge-made expansion of jurisdictional rules, keeping the case away from a state court with concurrent jurisdiction. It kills the case by applying unique, often judge-made federal-court doctrines to dismiss the case on non-merits grounds that prevent future litigation of the claim.

Clopton narrows and specifies the details of both elements.

A court catches through judicially created jurisdictional rules or expansive judicial interpretations of jurisdictional statutes, allowing cases to be filed in federal court or removed from state court; the federal court exercises jurisdiction rather than a state court, as the catching publication controls the piece rather than another publication. Courts catch through several doctrines. One is federal common law and federal common law of foreign relations in transnational cases—cases arise under federal law because judge-made federal law, rather than apparent state law, provides the rule of decision. Another is jurisdictional sequencing; the court assumes subject-matter jurisdiction to dismiss cases on other federal procedural grounds. Another involves expansive readings of federal jurisdictional and removal statutes—snap removal (allowing removal of diversity cases before a disqualifying forum defendant is served), federal-officer removal, and complete preemption (a federal statute converts a state common law claim into a federal statutory claim arising under federal law).

A court kills by dismissing in a specific way. Killing requires a non-merits dismissal, rejecting the claim on grounds that would not have applied or produced the same result in state court. Killing requires more than wounding—that a case becomes more difficult for a plaintiff in federal court than state court (e.g., because of heightened pleading requirements) does not mean the case has been killed. Killing means the case cannot—as a legal or practical matter—be refiled and successfully litigated in state court. Courts kill cases by dismissing for forum non conveniens or by abstaining on grounds of international comity; both push litigation to a non-U.S. court. Courts can kill by delaying ruling on a jurisdictional motion (such as a motion to remand to state court), leaving time for settlement or other resolution. And courts kill by rejecting the plaintiff’s claim under federal common law, the most insidious exercise of this power—the court exercises jurisdiction because federal common law or a preempting federal statute provides the rule of decision, then finds no enforceable legal right under federal common law.

Clopton identifies three features that enable the catch-and-kill phenomenon. Federal courts must be willing to expand their jurisdiction and to exercise judicial power, whether generally or out of special concerns for a particular class of case, such as transnational litigation. Federal courts must be hostile to a class of cases or litigants and willing to apply non-merits doctrines to defeat those claims. And Clopton warns of a “catch and kill ratchet,” in which catch-and-kill jurisdiction begets more catch-and-kill jurisdiction. As defendants recognize federal-court hostility to some claims, they push courts to extend jurisdiction to bring those disfavored claims into federal court to be rejected, whether by lobbying Congress to expand jurisdiction or by urging broader interpretations of existing jurisdictional grants. That is, as defendants recognize that federal courts are willing to kill some cases, they push to allow federal courts to catch more of those cases.

Clopton rejects the easy conclusion that this phenomenon must be a negative. Absent agreement on the ideal distribution between state and federal courts, it is impossible to say the expansion of federal jurisdiction or the rejection of these claims is incorrect. A stronger objection rests on concerns for transparency and democratic legitimacy. Catch-and-kill changes substantive policy on important matters—transnational claims and claims regarding climate change—through “diffusion, obscurity, and seeming neutrality.” Rather than Congress, hundreds of lower-court judges apply neutral-sounding procedural rules with different issues in different cases, with a corresponding loss of oversight, public accountability, and even public awareness of actual substantive policy. For example, three lower-court judges may create a catch-and-kill doctrine—one judge creates the catch rule in one case, a second judge creates the kill rule in a second case, and a third judge combines those rules in a third case—each unknown and out of the public eye.

Having described the phenomenon and its defects, Clopton questions who might eliminate the practice and how. Congress, the Supreme Court, and the states can produce wholesale changes, although he doubts any would be willing or effective. He places greater faith in litigants to make lower courts aware of the catch-and-kill problem and of the need to narrow these jurisdictional doctrines or to refuse to apply them in a way that produces kills. By naming this phenomenon, Clopton strengthens those arguments.

Catch-and-kill journalism is a nefarious practice, a way for the worst tabloid journalists to expend vast resources to conceal misconduct of powerful actors from public view, scrutiny, and accountability. Clopton finds and uses the perfect metaphor for a litigation phenomenon—these doctrines protect powerful defendants from seeming liability, through doctrines whose creation, application, and outcome is concealed from public view, scrutiny, and accountability.

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Cite as: Howard M. Wasserman, Catching and Killing It in Federal Court, JOTWELL (July 21, 2022) (reviewing Zachary D. Clopton, Catch and Kill Jurisdiction, _ Mich. L. Rev. _ (forthcoming 2022), available at SSRN),