[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]





                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




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


      Available via the World Wide Web: http://judiciary.house.gov
      
                                 ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

22-118 PDF                     WASHINGTON : 2016 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001    
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           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                     STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
JIM JORDAN, Ohio                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                            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
                       deg.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
 
                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.
    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 Constitution, 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.
    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 interpret 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 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 national 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:]
    
    
    
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
    
    
                                   __________
                                   
                                   
                                   
                                   
    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 specialized 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:]
    
    
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
    
   
                               __________
                               
                               
                               
                               
    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 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:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    
                               __________
                               
                               
    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 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.
    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 
researchers. 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 African-
American 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.
    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 matter--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 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.
    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.
    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.
    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.]

                                 [all]