Permiso de Salud

Freeing the debate from the tethers of the bias rationale also sets

other considerations in a new light. For example, diversity jurisdiction

can help avoid other state court biases that are not inherently tied to

out-of-state citizenship.

As shown above, even some of the Constitution’s Framers seemed

more focused on anticreditor or economic biases than nonresident

status generally.

Corporations have long valued diversity jurisdiction

because of a belief that federal courts are more business friendly than

state courts.

That sentiment largely continues in modern times: a

study published in 1992 found 45 percent of surveyed defense attorneys

reported that they perceived state court bias against corporate

defendants,

_{and a study published in 1995 found that corporations}

tend to favor selecting federal court.

Relatedly, some litigants perceive certain state courts as more

plaintiff friendly, or class action friendly, than their corresponding

223. See, e.g., Dodson, Personal Jurisdiction and Aggregation, supra note 186, at 39–40 (suggesting rule expansion for pendent personal jurisdiction).

224. See supra notes 50–56 and accompanying text; see also Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1398–1404 (2006) (arguing that federal judges have seen themselves as better guarantors of a national free market).

225. See PURCELL, BRANDEIS AND THE PROGRESSIVE CONSTITUTION, supra note 120, at 64 (“Diversity jurisdiction symbolized for both Progressives and their adversaries the de facto alliance between corporations and the national judiciary.”); Charles E. Clark, Diversity of Citizenship Jurisdiction of the Federal Courts, 19 A.B.A. J. 499, 502 (1933) (reviewing data in support of this point); Frank, Historical Bases, supra note 12, at 28 (noting the anticipatory nature of this concern); William H. Taft, Criticisms of the Federal Judiciary, 29 AM. L. REV. 641, 650–51 (1895) (calling state courts part of “a corporation-hating community”). But see WILLIAM G. ROSS, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890–1937, at 6 (1994) (disputing federal courts’ procorporate tendency by arguing that the “federal judicial power and the judiciary’s solicitude for the rights of private property continued to grow throughout the antebellum period”).

226. Miller, supra note 141, at 409.

227. See Flango, Litigant Choice, supra note 155, at 968 (“Attorneys who do regard corporate status as an important consideration in forum selection tend to favor federal court if their client is a corporation and state court if their opponent is a corporation.”).

federal courts.

_{CAFA, which is discussed in more detail below, was}

motivated in large part by these concerns.

Although state procedural

rules largely mimic federal procedural rules, state rules have some

differences,

differences that often are perceived as advantaging

plaintiffs.

Others see antirural or antiurban biases in state courts.

_And

some have suggested that diversity jurisdiction can help overcome

racial bias in state courts.

_{Political or social preferences may differ in}

state and federal court,

such as when a litigation raises sensitive or

highly charged issues like abortion or religion. Quite aside from biases,

diversity jurisdiction offers certain efficiencies, including interstate

procedural uniformity and familiarity and the ability to transfer to

more convenient locations.

228. See THOMAS E. WILLGING & SHANNON R. WHEATMAN, FED. JUD. CTR., ATTORNEY

REPORTS ON THE IMPACT OF AMCHEM AND ORTIZ ON CHOICE OF A FEDERAL OR STATE

FORUM IN CLASS ACTION LITIGATION 8 (2004) (reporting class action plaintiffs’ preference for state court); Eric Helland & Alexander Tabarrok, The Effect of Electoral Institutions on Tort Awards, 4 AM. L. & ECON. REV. 341, 368 (2002) (exploring incentives for state judges to favor in- state plaintiffs); Purcell, The Class Action Fairness Act, supra note 82, at 1849 (“For more than half a century, from Reconstruction to the New Deal, tort plaintiffs suing national corporations preferred state courts, in part because they believed that federal judges were biased against them.”); cf. Kevin M. Clermont & Theodore Eisenberg, Anti-Plaintiff Bias in the Federal Appellate Courts, 84 JUDICATURE 128, 131 (2000) (finding evidence of antiplaintiff bias in federal appellate courts).

229. See Kermit Roosevelt III, Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove, 106 NW. U. L. REV. 1, 49 (2012) (“Congress [in passing CAFA] was plainly concerned that state courts were certifying too many class actions, and it plainly was hoping that fewer would be certified in federal court.”).

230. See Zachary D. Clopton, Procedural Retrenchment and the States, 106 CALIF. L. REV. 411, 423–45 (2018) (highlighting certain significant procedural differences).

231. See Miller, supra note 141, at 418–22 (reporting attorney perceptions of proplaintiff procedures in state courts); cf. Stephen B. Burbank & Sean Farhang, Litigation Reform: An Institutional Approach, 162 U. PA. L. REV. 1543, 1551–80 (2014) (making the case that federal court procedures have become increasingly antiplaintiff and antilitigation).

232. See generally Debra Lyn Bassett, Ruralism, 88 IOWA L. REV. 273 (2003) (recognizing an increasingly urban focus in institutions and policies at the expense of rural interests).

233. See Benjamin V. Madison, III, Color-Blind: Procedure’s Quiet but Crucial Role in Achieving Racial Justice, 78 UMKC L. REV. 617, 618–19 (2010) (highlighting procedural elements of the criminal trial of officers involved in the Rodney King beating).

234. See generally Letter from GBA Strategies to Nat’l Ctr. for State Cts. (Dec. 4, 2014), http://jpo.wrlc.org/bitstream/handle/11204/3967/Analysis%20of%C20National%C20Survey%C 20of%C20Registered%20Voters.pdf?sequence=4 [https://perma.cc/C4UC-GAV2] (finding evidence of public perceptions of political bias in state courts).

235. See, e.g., 28 U.S.C. § 1404(a) (2018) (allowing venue transfer for the convenience of the parties and witnesses); Frank, Case for Diversity Jurisdiction, supra note 126, at 408–09 (lauding the uniformity and familiarity of federal procedures).

This Article does not defend these potential benefits of diversity

jurisdiction here or suggest that they should carry the day.

Instead,

the point is that minimizing the out-of-state bias rationale allows these

factors to be confronted and debated more clearly on their own terms

rather than be overshadowed by the lens of out-of-state bias.