Date01 November 2022
AuthorClopton, Zachary D.

In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other means.

Catch and kill jurisdiction is a recurrent and growing phenomenon. This Article defines catch and kill jurisdiction and identifies areas where it can be found today, including in transnational and complex cases. This Article argues that catch and kill is likely to arise when federal judges are willing and able to expand federal jurisdiction and when federal courts are hostile to certain classes of claims or litigants. It also shows how catch and kill feeds back into more catch and kill--what I call the catch and kill ratchet.

On the normative side, this Article does not argue that catch and kill is inherently wrong--indeed, some examples of catch and kill are normatively preferable. Instead, this Article argues that catch and kill jurisdiction is problematic when it relies on seeming neutrality, obscurity, and delegation to achieve deregulatory ends that might not be possible through substantive lawmaking. These concerns are exacerbated because federal judges--not legislators--are the lawmakers in catch and kill. Federalism values also are at stake when catch and kill defeats claims arising under state law. This Article's analysis of catch and kill also helps clarify some of the issues raised by the Class Action Fairness Act, in which Congress employed a catch-and-kill-like strategy in service of deregulation.

Finally, this Article explains why it will be challenging to reverse catch and kill in gross, though there are strategies to resist catch and kill in individual cases.

TABLE OF CONTENTS INTRODUCTION I. CATCHING AND KILLING II. CATCH AND KILL CATEGORIES A. Transnational Litigation 1. Expanding Jurisdiction a. Federal Common Law and Preemption b. Federal Common Law of Foreign Relations 2. Nonmerits Dismissals a. Forum Non Conveniens b. Abstention c. Federal Common Law Cases 3. Examples of Catch and Kill B. Jurisdictional Sequencing 1. Lawful Sequencing 2. Willful Blindness C. Expansive Readings of Federal Statutes 1. Snap Removal 2. Federal Officer Removal 3. Complete Preemption Statutes III. A POSITIVE ACCOUNT A. Conditions for Catch and Kill B. The Catch and Kill Ratchet IV. A NORMATIVE ACCOUNT A. Inherent Tension? B. Functional Concerns C. Federalism Concerns D. CAFA and Congressional Catch and Kill V. RESPONSES, IF ANY A. Wholesale Responses B. Retail Responses CONCLUSION INTRODUCTION

As long as there have been courts, there have been fights about court access. Particularly in a country such as the United States that relies so heavily on litigation to enforce important social policies, (1) fights about regulation and deregulation will play out in debates about court access. (2)

In the simplest form, those that seek deregulation or reduced enforcement will pursue policies to close courthouse doors, while those that seek regulation or increased enforcement will try to open them. (3) For example, proponents of climate change regulation have turned to the courts in scores of cases on myriad legal theories. (4) In response, defendants and defense-side interests have argued that federal courts lack jurisdiction over these claims, for example, for lack of standing or as political questions. (5) They seek to deny court access in order to stanch the regulation of climate change.

There is another, more subtle way to use court access to deregulate. Here, too, climate litigation provides a useful illustration. In 2017, the cities of Oakland and San Francisco sued the five largest fossil fuel producers for harms related to climate change. (6) The suits were originally filed in California state court, but defendants quickly removed to federal court. The federal district court denied plaintiffs' motion to remand, holding that even though the plaintiffs asserted public nuisance claims under state law, the federal court had "federal question" jurisdiction because federal common law should displace state law. (7) Less than four months later, the same district court granted a motion to dismiss the cities' claims because considerations of foreign policy and the separation of powers counseled against a federal court creating federal common law related to global warming. (8) There was federal common law for purposes of taking jurisdiction, but not for purposes of adjudicating the merits. (9) Here, deregulation was achieved by first expanding court access and then dismissing without reaching the merits.

I call this phenomenon "catch and kill jurisdiction." In tabloid journalism, catch and kill refers to the practice of purchasing an exclusive story for the purpose of not publishing it--say a story about an extramarital affair between a presidential candidate and an adult film actress. (10) In litigation, catch and kill jurisdiction involves a judge-made expansion of court access in federal courts in order to "catch" more state court cases, followed by the use of federal-court doctrines to "kill" those cases with a dismissal.

Admittedly, whenever a federal court resolves a removed case against a plaintiff, it could be said that the federal court caught and killed the claim. But the exercises of catch and kill jurisdiction at issue in this Article involve something more. First, this Article is concerned with often-exorbitant expansions of federal jurisdiction--that is, the federal court (with the help of defendants) is "catching" cases that doctrinally or normatively should be in state court. (11) Second, this Article is concerned with dispositions that are based on a ground not available in state court, and that cut off relitigation--that is, the federal court (again with the help of defendants) is "killing" claims without reaching the merits, in ways that make refiling in state court impossible (through preclusion) or impractical (through other impediments to complete relief). (12) Thus, these decisions expand jurisdiction to bring cases in but then dispose of them using tools that shut both federal and state courthouse doors.

The definition of catch and kill does not require intent on the part of the judges. Judges developing new interpretations of federal subject matter jurisdiction, for example, may not have in mind a plan to resolve those cases with nonmerits dismissals. But once these doctrines are in place, defendants (and some judges) may intentionally pair the expansion of federal jurisdiction with nonmerits dismissals to deny adjudication formally or functionally on the merits anywhere in the country.

Having defined the category of catch and kill jurisdiction, this Article seeks to identify areas in which catch and kill jurisdiction is likely to be found. In transnational litigation, federal courts have expanded jurisdiction based on foreign affairs considerations but then killed cases using discretionary doctrines applicable only in federal court (such as federal forum non conveniens and international comity abstention). (13) In multidistrict litigation, some judges have functionally expanded jurisdiction by ignoring motions to remand in order to approve global settlements (and perhaps to dismiss cases altogether). The Supreme Court has sanctioned "hypothetical jurisdiction" doctrines, which allow federal courts to bypass considerations of subject matter jurisdiction in order to dismiss cases based on other, discretionary grounds. (14) And lower courts' willingness to take cases based on increasingly broad interpretations of federal statutes creates yet more opportunities for catch and kill. (15)

The definition and survey of catch and kill also permit this Article to offer a positive account of catch and kill. (16) In brief, although catch and kill could arise anywhere, I argue that catch and kill is most likely to take hold if two conditions are met. First, catch and kill is more likely to arise where federal judges are willing and able to expand federal jurisdiction. Second, catch and kill is more likely where the federal courts are hostile to a class of litigation or litigants. These conditions allow us to predict where catch and kill might come next. These conditions also help explain the catch and kill ratchet: As federal courts become more willing to kill cases (in ways that state courts would not), defendants will become more eager to get into federal court, asking for even broader bases of federal jurisdiction. Those broad bases increase incentives for more ways to kill cases in federal court.

The descriptive work of this Article also lends itself to normative analysis. (17) To begin with, there is nothing necessarily wrong with an expansion of federal jurisdiction followed by a disposition on some nonmerits basis not available in state court. But identifying the mechanism of catch and kill helps illuminate some of its tradeoffs, which in turn allows for normative and institutional assessments.

As we all know, Congress has the legal authority to pass a statute that defines federal law and preempts state law. Catch and kill can achieve the same results through procedure and jurisdiction. (18) Doing so obscures the stakes, blunts opposition, and makes it more difficult for nonexperts to engage. Moreover, because these doctrines delegate ultimate enforcement to individual judges in individual cases, it becomes even more difficult to identify the larger problem and to motivate reform. Catch and kill thus involves federal judges altering substantive...

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