Catch and Kill Jurisdiction

Zachary D. Clopton November, 2022

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.

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 rights without the input of the elected branches, and these results obtain in seemingly one-off disputes that can fly under the radar even for engaged observers.

Catch and kill presents a further federalism concern when these cases arise under state law.¹⁹ In such cases, federal judges dispose of state law claims with no input from state actors. And because of how catch and kill works, states have little recourse to remedy these situations. They cannot, for example, simply expand state court jurisdiction or change state procedural law. Those efforts, which I have supported in other contexts,²⁰ are defeated by catch and kill when removal is available.

Although the definition of catch and kill used in this Article involves federal judges expanding jurisdiction and developing nonmerits tools to dismiss cases, the courts are not the only institution that could wield these tools. Congress could, rather than engaging in substantive lawmaking, expand federal jurisdiction in hopes of killing cases with federal procedure. Indeed, I think this fairly describes Congress’s decision to enact the Class Action Fairness Act of 2005.²¹ Perhaps there is a different paper to be written about catch and kill independent of its institutional source.²² But this paper is about judge-made catch and kill, and for the reasons articulated throughout this Article, judge-made catch and kill has some peculiar (and peculiarly problematic) aspects not present in other institutional settings.²³ Still, I take up briefly below the related phenomenon of Congress engaging in catch and kill legislation.²⁴

In any event, having identified the problem of judicial catch and kill, the Article engages with potential reforms. Because catch and kill flies under the radar, it would be unwise to assume that Congress or the states will respond to catch and kill. The Supreme Court is also unlikely to pull back on federal jurisdiction or on procedural dispositions. Indeed, in 2008, a law professor named Amy Coney Barrett wrote an article in the Virginia Law Review justifying the federal court’s creation of federal procedural common law, binding only in federal courts, citing forum non conveniens as a prime example.²⁵ And in a recent decision on federal officer removal in a climate case, the Supreme Court encouraged appellate courts to look for ways to keep such cases in federal court.²⁶ What is left are more local responses, such as persuading sympathetic lower court judges to stem the tide of some of these doctrines and an attention to individual cases by state, federal, and private parties. But even these efforts must swim decidedly upstream.²⁷

The balance of this Article proceeds as follows. Part I describes the doctrinal background and offers a working definition of catch and kill jurisdiction. Part II discusses major categories in which we are likely to find catch and kill cases: transnational litigation, formal and informal jurisdictional sequencing, and expansive uses of removal and preemption. Part III offers a positive account of when catch and kill is likely to occur.

Turning to the normative, Part IV argues that catch and kill jurisdiction raises problems of democracy and political accountability because it uses seeming neutrality, obscurity, and delegation to change the substantive law. Catch and kill jurisdiction raises additional federalism problems when federal procedural doctrines are used to kill state law claims. Part IV ends with a discussion of a related phenomenon under the aforementioned Class Action Fairness Act of 2005 (CAFA). This Article’s analysis of catch and kill helps clarify why CAFA—and congressional catch and kill more broadly—might be troubling.

Part V concludes with potential responses, exploring the limited tools available to respond to this deviously effective strategy. But while I mention these potential responses, that is not the goal of this Article. Instead, the point here is to identify a phenomenon, explain its function, and offer a framework for its assessment.

I. Catching and Killing

First, let’s start with the basics. Federal courts are courts of limited jurisdiction.²⁸ The subject matter jurisdiction of federal courts is limited by Article III of the Constitution²⁹ and then by the bases of subject matter jurisdiction authorized by Congress.³⁰

There is a presumption that federal jurisdiction is concurrent with state courts,³¹ meaning that many federal court cases could have been filed in state court as well. Indeed, a substantial number of federal court cases were filed in state court first.³² These cases end up in federal court through the process of removal, by which defendants seek to essentially transfer cases from a state court to the federal court encompassing that state court.³³ Once a case is removed, the federal court handles it as if it had been filed there in the first place—except that if the court ultimately finds it lacked jurisdiction, the proper disposition is remand to state court rather than dismissal.³⁴

This brings us to catch and kill. In some sense, every federal case involving concurrent jurisdiction is “caught,” and every case resolved against the plaintiff is “killed.” This capacious definition of catch and kill jurisdiction is of little use, and it is not the definition adopted in this Article.

Although a crisp definition of catch and kill jurisdiction is not readily apparent, certain attributes help define what does or does not qualify.

One requirement of catch and kill is some opportunity for concurrent state court jurisdiction, allowing us to say that the federal court “caught” the case.³⁵ While not every example of catch and kill involves removal—the case could have been filed directly in federal court—removed cases are particularly troubling. In removed cases, we do not need to hypothesize a state court case because the plaintiff filed one. And in removed cases, you might say the plaintiff’s hands are clean with respect to the invocation of federal jurisdiction.

Not all assertions of concurrent federal jurisdiction should raise the red flags that I argue come with catch and kill jurisdiction. This Article is focused on cases brought into federal court based on expansive interpretations of federal jurisdiction offered by federal judges. What constitutes an expansive interpretation is a question on which reasonable minds can differ. When courts apply a clear congressional grant in an easily anticipated way, that is not a “catch.” But when the courts take an unclear grant—or worse, a clear grant—and expand it, then we are moving closer to a “catch.” Similarly, we might conclude that an interpretation is expansive when it is contrary to existing judicial precedent.³⁶

Turning to the second half of the equation, one feature of a catch and kill dismissal is that the federal court is “killing” the case on a basis not applicable in state court. This definition rules out dismissals on the merits. The reason is that—for the most part³⁷—a federal court dismissing a case on the merits should be applying the same substantive law as a forum state court would, following the guidance of Erie v. Tompkins³⁸ and Klaxon. v. Stentor Electric.³⁹ In these cases, the federal court is not killing a case that should have survived in state court. This definition also does not include cases dismissed by a federal court on a nonmerits basis that would result in dismissal in the state court as well. This could occur where federal and state courts apply the same law, either because they are required to do so (under Erie or preemption)⁴⁰ or because they independently follow the same doctrine (a type of “false conflict”).⁴¹

An additional feature of catch and kill is that the dismissal must “kill” the case, in law or in fact. A federal court kills a case when its dismissal would be entitled to preclusive effect, such that the case refiled in state court would be dismissed on res judicata.⁴² A federal court de facto kills a case when its decision makes it impractical to litigate the case in federal or state court.⁴³

Finally, it is worth explaining in some detail why this Article addresses federal doctrines that “kill” cases but not federal doctrines that “wound” them. Why shouldn’t we be worried about a doctrine that cuts in half the available remedies⁴⁴ or the probability of success on the merits?⁴⁵ Perhaps most importantly, there is a fundamental difference between deciding a case on the merits and deciding the case on another basis.⁴⁶ This distinction implicates the day-in-court ideal,⁴⁷ the dignitary interests of the parties,⁴⁸ the accuracy of the adjudication,⁴⁹ and the community interests in a public hearing.⁵⁰ There is also the practical reason that it is easier to determine whether a case is alive or dead than it is to determine if the expected return is higher or lower. Even limiting the inquiry to those decisions that have a substantial impact on the outcome introduces difficult line-drawing problems,⁵¹ and it does not respond to the earlier claim regarding the merits–nonmerits distinction. For these reasons, this Article is addressed to catch and kill alone.

II. Catch and Kill Categories

This Part reviews potential categories of “catch and kill” cases that have arisen over recent decades: transnational litigation, jurisdictional sequencing, and statutory expansion. I take up in Part IV the related topic of dismissals under the Class Action Fairness Act.⁵²

A. Transnational Litigation

Transnational litigation is ripe for catch and kill jurisdiction. The reason, in short, is that foreign affairs is an area in which federal courts have been known to extend federal jurisdiction, and it is also an area in which federal courts have relied on various nonmerits federal doctrines to dismiss cases.⁵³

To unpack catch and kill jurisdiction in transnational cases, it helps to separate the tools of catch (jurisdiction) and kill (dismissal) available to federal courts. Having described those tools, this Section ends with some examples of catch and kill in action.

1. Expanding Jurisdiction

While much has been made about the federal courts’ “xenophobia,”⁵⁴ a less noticed trend has been the expansions of federal jurisdiction (relative to state courts) in transnational cases.

a. Federal Common Law and Preemption

First, defendants in transnational cases have asked federal courts to expand jurisdiction through expansive interpretations of preemption by federal common law.

One strategy of climate activists has been to work with municipal plaintiffs to sue fossil fuel companies.⁵⁵ In many of these cases, the municipal plaintiffs sued in state court under state law.⁵⁶ Defendants frequently removed to federal court, raising any number of bases for removal.⁵⁷ Of interest here, some defendants argued that federal question jurisdiction attached to these state law actions.

Your 1L Civil Procedure professor probably explained that federal question jurisdiction was available for federal claims, so how could federal question jurisdiction attach to these state law actions?⁵⁸ The answer lies in an expansive interpretation of federal common law. Federal common law is preemptive judge-made law, often justified by an overriding federal interest. In some climate change cases, defendants argue that because federal interests in climate policy were strong, federal common law must preempt state law claims and convert them into federal claims, thus creating a basis for federal jurisdiction.⁵⁹

The Northern District of California accepted this basis for removal of climate change claims filed by the cities of Oakland and San Francisco.⁶⁰ The court explained its logic in this way:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the making (and studying) with causes ranging from volcanoes, to wildfires, to deforestation to stimulation of other greenhouse gases—and, most pertinent here, to the combustion of fossil fuels. . . . Taking the complaints at face value, the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts and our federal common law.

. . . .

. . . [T]he well-pleaded complaint rule⁶¹ does not bar removal of these actions. Federal jurisdiction exists in this case if the claims necessarily arise under federal common law. . . .

Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available. This order does not address whether (or not) plaintiffs have stated claims for relief. But plaintiffs’ claims, if any, are governed by federal common law. Federal jurisdiction is therefore proper.⁶²

Importantly, the Ninth Circuit ultimately reversed this decision, concluding that the case should be remanded to state court.⁶³ A few other lower courts have reached similar conclusions.⁶⁴ But the Southern District of New York and the Second Circuit accepted this argument for jurisdiction in a case directly filed in federal court.⁶⁵ And climate change defendants and their amici routinely invoke this idea in ongoing litigation.⁶⁶ This jurisdictional argument, in other words, is still in play.⁶⁷

b. Federal Common Law of Foreign Relations

Second, federal courts have developed an unusual version of federal question jurisdiction, often referred to as jurisdiction based on the “federal common law of foreign relations.”⁶⁸ Courts in this category do not talk about federal law preempting state law—as in the previous discussion—but instead, they suggest that federal interests justify federal jurisdiction over concededly state law claims.

In Republic of the Philippines v. Marcos, the new government of the Philippines sued former President Ferdinand Marcos and others in New York state court, seeking to bar the transfer of real property out of New York as the properties were allegedly purchased with “ill-gotten wealth.”⁶⁹ Defendants removed, alleging federal question jurisdiction even though none of the claims arose under federal law, and there was no preemptive federal common law.⁷⁰ The district court accepted jurisdiction and the Second Circuit affirmed.⁷¹ It explained:

We hold that federal jurisdiction is present in any event because the claim raises, as a necessary element, the question whether to honor the request of a foreign government that the American courts enforce the foreign government’s directives to freeze property in the United States subject to future process in the foreign state. The question whether to honor such a request by a foreign government is itself a federal question to be decided with uniformity as a matter of federal law, and not separately in each state, regardless of whether the overall claim is viewed as one of federal or state common law.⁷²

In other words, the court found federal question jurisdiction because the case implicated certain aspects of foreign relations.

Later, the Fifth and Eleventh Circuits expanded on this notion of jurisdiction in a series of cases exemplified by Torres v. S. Peru Copper Corp.⁷³ In this case, Peruvian citizens sued an American company on state law claims arising from their alleged exposure to toxic fumes during copper smelting in Peru.⁷⁴ Although federal law did not provide the causes of action or even an ingredient in the state law claims,⁷⁵ the court concluded that federal jurisdiction was justified because the suit “raise[d] substantial questions of federal common law by implicating important foreign policy concerns.”⁷⁶

The federal common law of foreign relations has not opened the floodgates. The Ninth Circuit rejected this category of jurisdiction in Patrickson v. Dole Food Co.,⁷⁷ and other courts have declined to apply this category without ruling it out completely.⁷⁸ Still, it remains a viable basis for removal in some courts, and it is one that may lend itself to catch and kill.⁷⁹

2. Nonmerits Dismissals

Having just shown how federal courts have expanded jurisdiction with respect to transnational cases, I turn now to the other half of catch and kill. Transnational cases are prime candidates for catch and kill jurisdiction because federal courts have increasingly turned to federal doctrines to dismiss cases once in federal courts—what Professor Bookman would call “litigation isolationism.”⁸⁰ These doctrines purportedly serve the interests of international comity and the separation of powers by keeping federal courts out of foreign affairs. I survey here three doctrines of this type.

a. Forum Non Conveniens

First, the doctrine of forum non conveniens gives federal courts discretion to dismiss cases in favor of an adequate alternative forum.⁸¹ While forum non conveniens retains a slim role in domestic cases,⁸² it is an important aspect of transnational litigation.⁸³

Federal courts routinely entertain motions to dismiss based on forum non conveniens, including in cases that raise state law claims.⁸⁴ And it is well-understood that, in many cases dismissed on forum non conveniens, litigation in a foreign court is not going to happen.⁸⁵

Importantly, federal forum non conveniens law is not binding on state courts,⁸⁶ so there may be state law cases that would be dismissed from federal court that would have been heard on the merits in state courts.⁸⁷ Although the federal forum non conveniens dismissal would not preclude the plaintiff from refilling the same case in state court,⁸⁸ presumably, such cases would be removed and dismissed again.⁸⁹ And, again, litigation on the merits in foreign courts is rarely forthcoming either.⁹⁰

b. Abstention

Second, some federal courts have called for abstention in transnational cases that raise issues of international comity or foreign affairs.⁹¹ The term, “international comity abstention,” subsumes at least two categories of cases. One involves decisions to stay or dismiss in light of a parallel case pending in a foreign court.⁹² This tool of judicial equilibration can “kill” cases if the foreign proceeding produces a judgment entitled to preclusive effect in the United States.⁹³

The more aggressive form of international comity abstention is exemplified by the Ninth Circuit’s decision in Mujica v. AirScan Inc.,⁹⁴ which built on earlier Eleventh Circuit precedent.⁹⁵ The Mujica case arose from the 1998 bombing of a Colombian village by the Colombian Air Force.⁹⁶ Plaintiffs filed suit in the United States against two U.S. companies for their alleged complicity in the bombing.⁹⁷ After a decade of litigation, the Ninth Circuit ordered the case dismissed based on “international comity.”⁹⁸ Finding that Colombia’s interests in hearing the dispute were strong and the United States’s interests were weak, the court dismissed the case despite the fact that there was no Colombian litigation in process.⁹⁹

The Ninth Circuit has since reaffirmed the vitality of this doctrine,¹⁰⁰ and the Second Circuit has indicated that it follows a version of international comity abstention as well.¹⁰¹ The Supreme Court has, so far, ducked the opportunity to weigh in.¹⁰² So as long as this doctrine remains a valid basis for dismissal, it may be used to kill cases in federal court.¹⁰³

c. Federal Common Law Cases

Third and finally, federal courts may dismiss cases by combining certain forms of preemption with limitations on federal common law.

While preemption is often characterized as federal law preempting state law, some versions of preemption can occur without a federal enactment. As described above, for example, federal courts may find state law preempted under some version of foreign affairs preemption.¹⁰⁴ But once state law is preempted, some federal courts have declined to create federal common law based on foreign relations concerns.¹⁰⁵

For example, the Second Circuit held that federal common law preempted New York City’s state law claims against oil and gas companies related to climate change, but in the same opinion, held that there was no federal common law on which the city could sue.¹⁰⁶ In short, by preempting state law and declining to create federal common law, a federal court may end a case.¹⁰⁷

3. Examples of Catch and Kill

Transnational cases are plausible candidates for catch and kill when one of the aforementioned bases of jurisdiction is paired with one of the aforementioned bases of dismissal.

The Torres case about the Peruvian mine provides a straightforward example.¹⁰⁸ Plaintiffs filed suit in state court on state law claims.¹⁰⁹ Defendants removed, and the district court took jurisdiction based on a broad theory of the federal common law of foreign relations.¹¹⁰ The district court then dismissed the cases based on federal forum non conveniens and international comity,¹¹¹ neither of which would have been applicable had the case remained in state court.¹¹²

The climate change litigation described in the introduction is another example. There, the district court engaged in catch and kill by asserting federal jurisdiction based on foreign relations and then declining to create federal common law, thus ending the case.¹¹³

Looking forward, we might expect more of these cases to arise, thanks to what I call the catch and kill ratchet. As discussed in more detail below,¹¹⁴ as federal courts become more willing to dismiss cases on federal law bases, defendants will become more eager to get into federal court, arguing for even broader bases of jurisdiction. A defendant in a transnational case that knows a federal court will apply a strong form of international comity abstention and will have powerful incentives to argue for an expansive version of foreign relations jurisdiction. Indeed, as explained in the next section, sometimes defendants can achieve catch and kill without establishing federal jurisdiction in the first place.

B. Jurisdictional Sequencing

The next category of cases in which catch and kill is possible involves those cases in which federal courts can alter the sequence or timing of motions in order to dismiss a case. This Section reviews two types of sequencing cases. First, the Supreme Court has allowed federal courts to assume subject matter jurisdiction in order to dismiss cases on certain grounds. Second, courts may willfully blind themselves to jurisdictional issues in order to allow cases to be resolved. I take up each of those in turn.

1. Lawful Sequencing

Federal subject matter jurisdiction is a necessary condition for any federal court action, except for when it is not.

In Ruhrgas AG v. Marathon Oil, the Supreme Court countenanced a practice known as hypothetical jurisdiction or jurisdictional sequencing.¹¹⁵ In Ruhrgas, an oil company and its affiliates sued a German supplier in state court. Defendant removed on three bases, including the federal common law of foreign relations,¹¹⁶ each of which required the district court to engage with difficult legal questions.¹¹⁷ Rather than doing so, the district court dismissed for lack of personal jurisdiction, an issue that was relatively straightforward.¹¹⁸ In a unanimous opinion authored by Justice Ginsburg, the Supreme Court affirmed. As the Court wrote, “[w]here . . . a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.”¹¹⁹

Ruhrgas itself is not catch and kill, as the federal court dismissed the case on a basis (personal jurisdiction) that should apply in the same fashion as it would in state court.¹²⁰ However, hypothetical jurisdiction has grown to encompass more than just dismissals based on personal jurisdiction. In another unanimous opinion by Justice Ginsburg, the Supreme Court in Sinochem International Co. v. Malaysia International Shipping Corp. held that a federal court may dismiss a case based on forum non conveniens without first deciding whether subject matter jurisdiction is proper.¹²¹ Echoing Ruhrgas, the Court explained that “where subject matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course.”¹²² Because federal forum non conveniens law does not apply in state court,¹²³ these cases may fall into catch and kill territory.

Later decisions have suggested that federal courts may assume subject matter jurisdiction in order to dismiss based on justiciability, abstention, exhaustion, and other grounds.¹²⁴ These decisions, too, often rely on grounds not applicable in state court. For example, in In re Facebook, the federal court in New York assumed subject matter jurisdiction over state law claims in order to dismiss for lack of “derivative standing” under Federal Rule 23.1, applicable only in federal court.¹²⁵ Similarly, were a federal court to assume jurisdiction in order to dismiss based on international comity abstention or exhaustion, it would have engaged in catch and kill.¹²⁶

Notice, too, the dynamic effect of this type of resequencing. I mentioned above that defendants seeking to kill cases under federal procedural laws are essentially encouraged to offer ever more creative interpretations of federal subject matter jurisdiction—the catch and kill ratchet. Under the theory of hypothetical jurisdiction, removing defendants do not even need to succeed in establishing federal subject matter jurisdiction under those creative theories. They only must show enough to convince the federal court to exercise its discretion to assume jurisdiction and dismiss the case.¹²⁷

2. Willful Blindness

A second category of sequencing is less formal but just as effective. Imagine a defendant removes a case, and a plaintiff files a motion to remand to state court for lack of subject matter jurisdiction. Everything we know about federal subject matter jurisdiction suggests that a federal court in this situation should move quickly to resolve its jurisdiction before taking any relevant action¹²⁸—unless it fits within one of the prescribed areas of “hypothetical jurisdiction.”¹²⁹ But what if the federal court simply decided not to respond to the motion to remand and instead waited for the case to resolve itself by other means?

This type of situation is not a mere hypothetical. In the opioid litigation, thousands of cases filed around the country were consolidated for pretrial purposes in a multidistrict litigation (MDL) in front of Judge Polster in the Northern District of Ohio.¹³⁰ As part of his management of the MDL, Judge Polster issued an order that he would hold in abeyance any substantive filings, including motions to remand to state court for lack of subject matter jurisdiction.¹³¹ The goal of this decision was (presumably) to give parties the opportunity to reach a global settlement.¹³² But in so doing, the judge “caught” cases that may have been outside of federal subject matter jurisdiction. There have been suggestions that this practice will catch on in complex litigation, especially in large MDLs, creating more opportunities for catch and kill.¹³³

Critics of federal MDL might suggest that plaintiffs coerced into a federal settlement have their claims “killed” by the federal court.¹³⁴ I would not go that far, but even if we agreed that a federal settlement does not “kill” cases, the strategy of willful blindness to subject matter jurisdiction might permit cases to be killed in other ways. Many MDLs are a mix of individual and class claims,¹³⁵ so what if a federal judge ignored subject matter jurisdiction in order to deny class certification when it would have been granted in state court?¹³⁶ This might de facto kill a class action, where individual litigation is not worth the candle.¹³⁷ Or, if federal courts are willing to ignore subject matter jurisdiction in order to allow cases to settle, is it that implausible that they would ignore subject matter jurisdiction to dismiss cases?

An increasingly common tool in managing complex litigation is the requirement that plaintiffs file “fact sheets,” “profile forms,” or other documents to help organize a case.¹³⁸ Some judges will require plaintiffs to file such documents or face dismissal. In the massive Vioxx MDL, for example, Judge Fallon required the filing of plaintiff profile forms,¹³⁹ and he entertained motions to dismiss by defendants on that basis. In at least one case, defendant sought dismissal at this stage even though the plaintiff was seeking remand to state court based on a lack of federal subject matter jurisdiction.¹⁴⁰ Although I cannot say with certainty how many (if any) cases in MDLs have been dismissed in such circumstances, it would not surprise me to learn that the number is greater than zero.¹⁴¹

In any event, the willingness to ignore concerns with subject matter jurisdiction to manage complex litigation is yet another area in which catch and kill might thrive. And, again, this practice will be self-reenforcing through the catch and kill ratchet—the more that federal judges are willing to resolve cases in this fashion, the more defendants will seek to remove cases without solid jurisdictional footing in order to take advantage of these opportunities.¹⁴²

C. Expansive Readings of Federal Statutes

Finally, catch and kill may arise in (at least) three areas in which defendants seek to take advantage of federal courts’ elastic interpretations of federal statutes: snap removal, federal officer removal, and complete preemption. In each of these categories, federal court jurisdiction has been expanded to catch claims that might otherwise have been in state court. While none of these areas guarantees a nonmerits dismissal in federal court, they create new opportunities for such dispositions. And given the seeming increase in their use, they merit attention here. These areas also follow nicely from the prior discussion of “willful blindness” as they seem to be on the rise in the kind of complex disputes that often end up in federal MDLs.

1. Snap Removal

It is frequently said that a forum-state defendant may not remove a case to federal court when the only potential basis for federal jurisdiction is diversity of citizenship.¹⁴³ This articulation of the “forum defendant rule”¹⁴⁴ is consistent with the idea that diversity of citizenship protects out-of-state defendants from the bias of state courts.¹⁴⁵ An in-state defendant should need no such protection.

But the text of the removal statute does not line up perfectly with this description. The statute provides: “A civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”¹⁴⁶ The language about defendants “properly joined and served” was seemingly included to stop plaintiffs from naming but not serving a straw defendant from the forum state in an effort to avoid removal.¹⁴⁷ Entrepreneurial defendants have found another use for this language—if a defendant learns about the case after it is filed, but before service is effected, then the defendant can avoid the forum defendant rule by removing before service.¹⁴⁸ This might happen if the plaintiff (or their attorney) collegially alerts the defendant that service is coming.¹⁴⁹ Or, more commonly, the defendant (or their attorney) electronically monitors state court dockets to be alerted when a case is filed in order to seek pre-service removal in federal court.¹⁵⁰

This practice of so-called snap removal is growing in importance,¹⁵¹ and despite strong criticisms from the academy, it has been endorsed by an increasing number of federal courts.¹⁵² Some of those courts acknowledge that this interpretation of the removal statute seems inconsistent with the purposes of federal jurisdiction and is unfair to litigants, yet they feel compelled to permit it.¹⁵³ Whether these interpretations meet this Article’s definition of “catch”—whether courts are the ones expanding federal jurisdiction—is up for debate, but it appears that the jurisdictional hook is broader than the framers of the statute intended.

While snap removal does not necessarily lead to catch and kill, when paired with a nonmerits dismissal, it can be used by clever defendants to catch and kill state law claims. A case that would be decided on the merits in state court, and for which post-service removal would be unavailable, could be snap removed and then subject to a motion to dismiss on a federal procedural basis. For example, in Lothrop v. North American Air Charter, Inc., the defendant effected a snap removal from state court with the intention of filing a motion to dismiss based on federal forum non conveniens.¹⁵⁴ The federal court did not reach the motion because of a different jurisdictional defect, but it is clear that the defendant was seeking catch and kill.¹⁵⁵

Note also, as will be discussed more below,¹⁵⁶ that snap removal invariably involves state law claims, as the forum defendant rule that snap removal seeks to avoid is applicable only to cases in which diversity of citizenship provides the sole basis of jurisdiction.¹⁵⁷ I would also observe that snap removal seems to be frequently invoked in large MDLs,¹⁵⁸ which are susceptible to other kill strategies described above.¹⁵⁹

2. Federal Officer Removal

Lawsuits against federal officers also might invite catch and kill.¹⁶⁰ In 1815, Congress provided for federal officer removal primarily to permit federal customs officials to get out of state court.¹⁶¹ During Reconstruction, Congress returned to federal officer removal as part of a wider set of responses to state court hostility to the federal government.¹⁶² One problem facing Congress was that federal officers carrying out Reconstruction policies were being harassed by meritless lawsuits that state judges hostile to Reconstruction were willing to entertain. By allowing federal officers to remove, Congress invited federal courts to catch and kill those cases.¹⁶³

You might think that “federal officer” removal would be the province of federal officers, but private defendants also have been granted access to federal courts based on the federal officer removal statute. The current statute provides for removal where a person is “acting under” a federal officer,¹⁶⁴ and the Supreme Court repeatedly approved of federal officer removal by private parties assisting federal officers.¹⁶⁵ For example, the Supreme Court cited approvingly to a Fifth Circuit decision allowing Dow Chemical to remove a case under this statute arising from its performance of a government contract to provide Agent Orange to the United States military.¹⁶⁶

Recently, private defendants have offered ever-expanding notions of federal officer removal to gain access to federal courts, often in hopes of federal courts killing cases. In climate change cases, private defendants invoked federal officer removal because some of their fuel-supply agreements and oil-and-gas leases are with federal actors.¹⁶⁷ In the opioid litigation, private defendants invoked federal officer removal on the theory that some opioid distribution was coordinated with the federal Department of Veterans Affairs.¹⁶⁸ And in tobacco cases, private defendants invoked federal officer removal based on federal agencies’ regulation and monitoring of cigarette advertising—an argument the Supreme Court ultimately struck down in 2007.¹⁶⁹

These federal officer removals do not guarantee that cases will be dismissed based on the application of federal procedural law, but they may easily be combined with such dismissals to create catch and kill. This would include straightforward applications of federal procedural doctrine, such as dismissals or forum non conveniens.¹⁷⁰ Federal officer removal also can be used to functionally kill class actions. Defendants might invoke federal officer removal to get class actions into federal court when no other basis of jurisdiction exists.¹⁷¹ Once there, they could be subjected to a tougher class certification standard than they would have been in state court.¹⁷² A denial of class certification might, for all practical purposes, kill the case.¹⁷³

A recent decision of the Supreme Court might encourage more use of federal officer removal to catch (and kill) cases. Typically, decisions to remand removed cases are not appealable, but a small set of federal removal statutes permit appellate review.¹⁷⁴ The federal officer removal statute is one such statute.¹⁷⁵ In BP P.L.C. v. Mayor of Baltimore, a climate change case, the Supreme Court held that appellate review in a federal officer case could include appellate review of other bases of removal, even for which appellate review is not usually available.¹⁷⁶ Indeed, the Court encouraged courts reviewing such orders to consider other bases of removal.¹⁷⁷ The result is that there will be cases that would have been remanded prior to BP, but for which a court of appeals could now find jurisdiction on some other basis. In this way, federal officer removal functionally expands jurisdiction on other bases by making remand orders wholly reviewable—and it likely encourages defendants to include federal officer removal in order to obtain additional jurisdiction-expanding review.¹⁷⁸ More catch and kill likely will follow.

3. Complete Preemption Statutes

When defendants argue that a federal statute preempts state law claims,¹⁷⁹ typically, they do so as a defense. Defendants argue that the federal statute preempts the state law on which the plaintiff is suing. Under the well-pleaded complaint rule, this defensive preemption is not a basis for federal subject matter jurisdiction.¹⁸⁰

In a small number of areas, however, federal courts apply a doctrine called “complete preemption,” under which a federal statute essentially converts state law claims into federal law claims, thereby providing for federal question jurisdiction.¹⁸¹ As the Tenth Circuit explained:

We read the term [complete preemption] not as a crude measure of the breadth of the preemption (in the ordinary sense) of a state law by a federal law, but rather as a description of the specific situation in which a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress’s intent to permit removal.¹⁸²

The Supreme Court has found complete preemption of some claims covered by the Labor Management Relations Act (LMRA), Employee Retirement Income Security Act (ERISA), and the National Bank Act.¹⁸³ Defendants in COVID-related cases have attempted to remove state law claims to federal court under the theory that they are completely preempted by the Public Readiness and Emergency Preparedness (PREP) Act.¹⁸⁴ And according to Wright & Miller, lower court decisions have found some claims to be completely preempted by “the Air Transportation Safety and System Stabilization Act, the Bankruptcy Code, the Carmack Amendment to the Interstate Commerce Act, the Interstate Commerce Commission Termination Act, the Copyright Act, the Federal Communications Act, the Federal Deposit Insurance Act, the Federal Railroad Safety Act, the National Labor Relations Act, and the Securities Litigation Uniform Standards Act (SLUSA).”¹⁸⁵

Here, too, catch and kill is not required, but it is an option. Defendants, for example, have attempted to invoke complete preemption removal alongside motions to dismiss based on forum non conveniens.¹⁸⁶ Had they succeeded, the cases would have been caught and killed. Federal courts also have relied on complete preemption to hear state law cases related to ERISA and then dismissed based on an administrative exhaustion requirement specific to ERISA claims.¹⁸⁷ In these situations, complete preemption facilitates catch and kill.

III. A Positive Account

The foregoing was my attempt to define catch and kill and to describe areas in which catch and kill cases may be found. Putting together the definition and lived experience of catch and kill allows for both positive and normative analysis. This Part takes on the positive question—under what conditions is catch and kill likely to occur?—and the next Part offers a normative assessment of the practice of catch and kill.

A. Conditions for Catch and Kill

Turning to the positive account, two conditions seem likely to support catch and kill, tracking the division between catching and killing.

First, catch and kill jurisdiction needs a federal judiciary willing to expand federal jurisdiction. In other words, we should expect catch and kill to arise during periods when the federal courts are willing to expand their own jurisdiction. Assuming the courts mean what they say, then we should be surprised to find jurisdictional expansion during eras of real or perceived litigation booms because courts in those periods should be loath to expand jurisdiction (even if they will ultimately kill cases).¹⁸⁸ When such arguments recede, and federal courts are willing to expand their jurisdiction in service of other values, then catch and kill should be more common. Today’s stable or declining dockets,¹⁸⁹ and a federal bench not shy about judicial power, are fertile ground for this aspect of catch and kill.

This willingness to expand federal jurisdiction need not be transsubstantive. The courts frequently invoke specific categories of federal interests to justify the jurisdictional expansion that is an ingredient of catch and kill. Transnational litigation is the obvious example, where calls for “one voice” might support federal jurisdiction.¹⁹⁰ Highly regulated areas (complete preemption¹⁹¹), mass torts (some MDLs¹⁹²), and the protection of federal officials (federal officer removal¹⁹³) also might fit the bill. More on this point is below.¹⁹⁴

Second, because catch and kill requires a federal nonmerits dismissal, it is more likely to arise in areas in which the federal courts are hostile (consciously or not) to a class of claims or litigants.¹⁹⁵ In these areas, we should expect that federal courts might develop and deploy their own methods to dispose of cases even if they could be adjudicated on the merits in state courts.

This condition is consistent with the practice of catch and kill. For example, during Reconstruction, federal courts were “hostile” to suits against federal officers, consistent with catching and killing federal officer cases in that era.¹⁹⁶ That hostility may have been justified, suggesting that not all catching and killing is normatively problematic. More recently, federal court hostility to transnational litigation¹⁹⁷ and private enforcement¹⁹⁸ is consistent with catch and kill in those areas. We also might find that some federal judges are hostile to litigation that appears to intrude on the separation of powers.¹⁹⁹

One potential convergence of these conditions is when proponents of catch and kill can frame cases as implicating the authority of the federal political branches. Foreign affairs and complete preemption are the obvious examples. In these areas, it is easy to imagine arguments for expanding federal jurisdiction (to protect federal interests) and then abstaining in particular cases (out of deference to the political branches).²⁰⁰

B. The Catch and Kill Ratchet

The positive account of catch and kill also connects to the catch and kill ratchet hinted at in earlier sections.

The ratchet works this way. When federal courts are more hostile to a class of litigation than state courts, then we should expect defendants in that class of cases to have greater incentives to get into federal court. Responding to those incentives, defendants will try to get into federal court under current doctrine. They also will try to get congenial policymakers to expand federal jurisdiction. They will push for broader interpretations of existing jurisdictional grants when they find sympathetic judges—and, in all likelihood, they will lobby Congress for the same.²⁰¹ It is even possible that federal courts, seeing an influx of cases to which they are hostile, might be more willing to develop and deploy tools to kill such cases without reaching the merits.

It should not be surprising that defendants have pushed for courts to adopt broad interpretations of federal jurisdiction in transnational cases in light of federal procedural doctrines that allow nonmerits dismissals.²⁰² And perhaps it makes sense that federal courts hostile to transnational litigation developed procedural doctrines to kill transnational cases as they seemingly saw more of them.²⁰³

Nor should it be surprising defendants hoping for global resolution in an MDL have been pushing somewhat dubious bases for removal.²⁰⁴ Similarly, as described in more detail below, defendant-side interests lobbied Congress to expand federal jurisdiction over class actions (in what became CAFA) only after federal courts had evinced a hostility to class action claims.²⁰⁵ This would not be catch and kill per se, but it tracks catch and kill’s logic. Taken together, the increasing presence of catch and kill in complex cases (MDLs and CAFA) further attracts national repeat players to the federal courts.²⁰⁶

The prediction, in other words, is that catch and kill encourages more catch and kill.

IV. A Normative Account

What, then, should we make of catch and kill? It is easy to make arguments about particular catch and kill doctrines, and indeed many of the specific doctrines described above have been the subject of scholarly criticism.²⁰⁷ But even if we could agree on the normative merits of these doctrines, simply pointing out a bad doctrine (or a pair of bad doctrines) does not doom the whole category. Complaints about snap removal are complaints about snap removal; they are not necessarily complaints about the broader practice of federal courts taking jurisdiction and then dismissing cases.

This Part considers arguments about the broader practice of catch and kill. It first raises and then dispenses with an argument that the act of taking jurisdiction and dismissing on procedural grounds is inherently flawed. It then turns to three aspects of catch and kill that might raise normative concerns, focusing on catch and kill’s institutions and functions. This Part concludes by applying some of these lessons to the oft-studied, and oft-criticized, Class Action Fairness Act—and to Congress’s role in catch and kill more generally.

A. Inherent Tension?

When reading catch and kill cases, one often gets the feeling that there is something uneasy about the fit between expanding jurisdiction and dispensing with cases based on abstention-like doctrines.²⁰⁸ Federal jurisdiction is—or should be—about providing a federal forum to resolve disputes.²⁰⁹ Expanding federal jurisdiction, then, should be used to allow federal courts to hear more cases. “Kill” doctrines such as abstention point the other direction, staying federal judges’ hands despite their newfound jurisdiction.

A related critique connects the expansion of federal jurisdiction to the oft-repeated assertion that federal courts are courts of limited jurisdiction.²¹⁰ Importantly, the limited jurisdiction of federal courts operates against the backdrop of state courts of general jurisdiction, so that limited federal jurisdiction supplements general state jurisdiction.²¹¹ Catch and kill turns this arrangement on its head. Instead of asserting federal jurisdiction might be necessary to ensure a fair hearing on the merits,²¹² catch and kill seems to expand federal jurisdiction precisely because there is another court open for business.

The problem with these critiques is that they sweep too broadly. There is no ideal distribution of business between federal and state courts.²¹³ The line must be drawn somewhere. Once cases cross the line into federal jurisdiction, then federal courts must be able to dispose of cases, including through “nonmerits” determinations.²¹⁴ Federal courts have long exercised their discretion to decline jurisdiction, as famously documented by Professor David Shapiro.²¹⁵ Unless federal jurisdiction was zeroed out or nonmerits dispositions were eliminated entirely, then some cases will be caught and killed. Catch and kill, in other words, is baked in the cake of federal jurisdiction.

Indeed, under some circumstances, catch and kill may be normatively preferable. If state courts and their procedures truly were biased—if the “correct” outcome were a nonmerits dismissal—then federal courts catching and killing is the right decision.

B. Functional Concerns

A more persuasive set of concerns focuses on the relationship between what catch and kill achieves and how it does so.

While those dubious of catch and kill might connect it to well-worn concerns with judicial lawmaking,²¹⁶ this Article’s critique of catch and kill is more specific. Catch and kill is not only judge-made law, but it is a particular version of judge-made law. Catch and kill defeats substantive claims by judicial decree—first by judicially expanding federal jurisdiction and then by judicially resolving the cases without reaching the merits, all without resorting to any legislative process. More precisely, catch and kill is judge-made law that achieves substantive results using a method that undercuts oversight and democratic accountability through diffusion, obscurity, and seeming neutrality.²¹⁷

First, catch and kill involves nested delegations that diffuse responsibility. The initial lawmaking—the creation of a catch or kill doctrine—is spread out among judges across the country and among cases those judges hear over time. Congress passes every federal statute, but any one of a thousand federal judges in any one of a hundred thousand cases might write the opinion adopting a particular catch and kill doctrine. The application of catch and kill doctrines is then further diffused across judges and cases.²¹⁸ The catch doctrine might be created in one case, the kill in another, and then they are brought together for the first time in a third. This also means that the judge applying the doctrine is often different from the judge creating it, allowing the “applying” judges to seek the cover of “precedent,”²¹⁹ even if such precedent is not binding.²²⁰ And because each of these decisions is case-by-case, catch and kill spreads accountability across many individual judges and down the judicial hierarchy, often with the added protection of deferential standards of review.²²¹

Second, judge-made procedural and jurisdictional doctrines are further insulated from oversight because they rely on technical and legalist language. Procedure and jurisdiction are technical and opaque.²²² The jurisdictional and procedural doctrines comprising catch and kill are almost invariably more technical and obscure than the substantive claims at issue. Try explaining hypothetical jurisdiction to your nonlawyer friends and family.²²³ These features limit access by the public and press, making political accountability more difficult.²²⁴

Courts are especially able to take advantage of complexity and technicality because they have no democratic imperative to explain their work to the public at large, and the media is unlikely to fix the problem. Professors Burbank and Farhang, for example, find that the media coverage of Supreme Court decisions about the procedures affecting substantive rights is much less intense than the media coverage of decisions about the substantive rights themselves.²²⁵ Many of the decisions creating catch and kill doctrine are made at levels below the Supreme Court,²²⁶ where oversight is even less extensive.

Third, making substantive law through seemingly “neutral” issues of procedure changes the rhetorical terrain and, as a result, may obscure the substantive stakes.²²⁷ As Professor Ed Purcell explained, one advantage of making substantive changes through jurisdictional law is that “almost any reform proposal . . . could and would be robed in eminently plausible and seemingly public-oriented raiments.”²²⁸ Judicial doctrine is especially likely to speak in the language of neutrality.²²⁹ Catch and kill decisions are routinely cloaked in neutral or impersonal language. They do not address human rights or climate change but instead airy values such as “comity,”²³⁰ “judicial economy,”²³¹ or “institutional competence.”²³² This type of language further insulates judicial decisions from popular criticism.²³³

Taken together, these features of catch and kill make it a deviously effective way to make substantive policy. In these ways, catch and kill calls to mind what Professor Martin Redish and Christopher Pudelski called “legislative deception.”²³⁴ As Redish and Pudelski explained:

When a legislative body uses evidentiary or procedural mechanisms . . . to indirectly alter the “DNA” of its substantive law, a significant danger exists that the legislative body is misleading the electorate into believing that the law remains unchanged. In such a situation, the electorate is unable to judge its legislators on the basis of their support for or opposition to proposed legislative change, because it has been confused as to whether any such change has actually been implemented.

. . .

. . . . Like the deceptively small print alteration in a consumer contract, a procedural or evidentiary rule that alters the essence of underlying substantive law implements its change in a manner not likely to be recognized by most political consumers. The important functions of electoral checking and accountability are thereby significantly undermined.²³⁵

Catch and kill is not legislative deception. For one thing, it does not involve the legislature.²³⁶ The comparison is more conceptual: Catch and kill, like legislative deception, has consequences for our democratic commitments.²³⁷ It “alters the essence of underlying substantive law . . . in a manner not likely to be recognized by most political consumers.”²³⁸ Even if that does not make it unconstitutional, it makes this practice worth noting and criticizing.

The legislative deception comparison also sharpens the critique of catch and kill. Redish and Pudelski are concerned when legislative deception changes the outcomes of cases by essentially changing the substantive law. A similar thought applies to catch and kill. Merely moving cases into federal court leaves the substantive law intact; merely changing federal procedure does not change outcomes if state courts remain open (or if state courts would apply the same rules). But it is a different matter to take cases and then procedurally dismiss them when a state court would decide them on the merits. Or, to say it another way, procedural and jurisdictional changes that rely on diffusion, obscurity, and seeming neutrality are most problematic when they change the essence of the substantive law by changing substantive outcomes. Catch and kill, by definition, does just that.

C. Federalism Concerns

Catch and kill also has implications for federalism.²³⁹ When state law claims are brought into federal court and dismissed on federal-only grounds, the functional effect of state law is changed. A state law enforced at level X is now being enforced at lower level Y. This change in enforcement levels happens without the input of any state-level actor. It is preemption through the backdoor.²⁴⁰ Because catch and kill operates through judicial lawmaking, it also skirts the “political safeguards of federalism” that attach to federal legislation.²⁴¹

Of course, some judge-made expansions of federal jurisdiction are appropriate. It may be that these judicial creations bring us closer to the ideal distribution of cases.²⁴² But this is why it matters when attempts to “catch” cases are paired with certain methods of “killing” them. When expansions of jurisdiction are paired with federal-only procedural dismissals, the expansion of federal jurisdiction is not about providing a fairer adjudication on the merits or even a neutral “change in courtrooms.”²⁴³ Instead, the outcome is different because of some nonmerits rule that does not apply in state court. Thus, these judge-made doctrines undermine state-created rights without any state actor weighing in. These intrusions also cut out the people—no elected branch of federal or state government is involved at any stage.²⁴⁴

Federalism considerations also undermine the idea that judge-made catch and kill is justified by strong federal interests.²⁴⁵ Federal judges make law only when the issue has not been answered by the Constitution or Congress, suggesting that these areas have not risen to the level of constitutional or congressional concern.²⁴⁶ Moreover, these judge-made rules are not the usual form of federal common law that applies in state and federal court.²⁴⁷ If they were, then they would not meet the definition of “kill.”²⁴⁸ Instead, these rules are what some have called “procedural common law,” created by federal judges and applicable in federal court alone.²⁴⁹ These rules, therefore, do not even invoke a sufficient federal interest such that a uniform rule is required in state and federal court; otherwise, they would be the traditional type of federal common law.²⁵⁰ In other words, the fact that these cases involve judge-made rules that do not apply in state court is, in itself, evidence that they are supported by weak federal interests.

Finally, a focus on federalism casts doubt on catch and kill doctrines that rely on deference to the political branches.²⁵¹ While federal courts are proper subjects of federal separation of powers law, the states need not, and often do not, mirror the federal system with respect to these questions.²⁵² States can and do permit their courts to hear a wider set of disputes than in the federal system.²⁵³ This makes it particularly galling when a federal court expands its jurisdiction (at the expense of state courts) only to dismiss a case because the federal court (but not the state court) is the wrong institution. For example, in Hill v. Warsewa, a federal district court used hypothetical subject matter jurisdiction to catch a state law claim, only to kill the case based on federal prudential standing law not applicable in state court.²⁵⁴ It is hard to justify taking such a case away from a state court that, under state law, is willing and able to hear the dispute.

In summary, catch and kill is concerning when it essentially changes the substantive law through diffusion, obscurity, and seeming neutrality. The results are potentially more troubling when the claims arise under state law, especially when the federal procedural doctrines reflect federal arrangements inapplicable to the states.

D. CAFA and Congressional Catch and Kill

Before leaving this normative analysis, it is worth pausing to discuss its connection to the Class Action Fairness Act of 2005 (CAFA).²⁵⁵ In short, CAFA is an example of Congress using the technique of catch and kill instead of (unpopular) substantive lawmaking.

CAFA arose from the ashes of failed efforts at more direct federal tort reform,²⁵⁶ including the Common Sense Product Liability Legal Reform Act (PLLRA), which was vetoed by President Clinton.²⁵⁷ CAFA’s backers had similar goals²⁵⁸ but pursued them by less direct means—that is, by expanding federal jurisdiction.²⁵⁹

As proponents of CAFA told it, plaintiffs’ lawyers were taking advantage of loose standards for class certification and overly generous jury pools in some state courts to extract unfair settlements from innocent corporate defendants.²⁶⁰ Proponents of CAFA sought to expand federal jurisdiction over putative class actions so that defendants could remove to federal court and obtain the benefit of the stricter federal standard for class certification.²⁶¹ Importantly, the denial of class certification in federal court would not mean sending the case back to state court; under CAFA, the federal court would retain jurisdiction over the action on behalf of named plaintiffs only.²⁶² In practice, the denial of class certification would be the death knell to the case, as individual litigation would not be cost-effective to maintain.²⁶³ CAFA thus expanded jurisdiction (the “catch”) in order to kill cases with procedure.²⁶⁴

CAFA is catch and kill at the direction of Congress. That institutional difference is important: CAFA was adopted through an open and notorious legislative process rather than a collection of seemingly one-off judicial decisions. Still, the functional analysis of catch and kill has something to say about CAFA. The choice in CAFA to engage in law reform via jurisdiction and procedure implicates this Article’s concern with seeming neutrality, obscurity, and diffusion.²⁶⁵ CAFA was sold as being about judicial hellholes, runaway juries, and the expertise of federal courts, not the substantive law of products liability.²⁶⁶ Its jurisdictional nature made CAFA more difficult to criticize, undercutting some of the transparency that should come from the legislative process.²⁶⁷ And CAFA essentially “delegated” the work of catching and killing to individual judges in individual cases.²⁶⁸ As Professor Vairo put it, “Congress appear[ed] to be seeking to dump its dirty work, disempowering plaintiffs’ attorneys and protecting its corporate constituents, on the federal courts.”²⁶⁹

Also, like catch and kill, CAFA has implications for federalism. CAFA is a statute that affects state law claims.²⁷⁰ But CAFA does not attempt to change the substantive law being applied.²⁷¹ Cases removed under CAFA apply the same substantive law that would apply in state court.²⁷² Instead, using the tools of catch and kill, CAFA is Congress essentially altering state substantive law via jurisdiction and procedure—taking laws that could be enforced in the aggregate and converting them to laws that are impractical to enforce in individual actions.²⁷³

CAFA thus uses jurisdictional law to delegate responsibility and undercut accountability while achieving the same substantive ends as more direct—but unsuccessful—law reform efforts. More generally, CAFA shows that the roadmap of catch and kill can be deployed by Congress to similar ends. Congressional catch and kill is not always normatively problematic—think labor injunction cases²⁷⁴—but it merits our attention because it presents many of the same risks as when judges engage in catch and kill.

V. Responses, If Any

Returning to (judge-made) catch and kill, this Article’s institutional analysis can help to identify where potential responses might be effective (or not). In short, the same concerns that attach to catch and kill also make it difficult to thwart across the board, though they leave open some options in individual cases.

A. Wholesale Responses

Many of the functional attributes of catch and kill mean that calls for wholesale renovations of these doctrines likely will fail in Congress, the Supreme Court, and the states.

Congress seems like an unlikely ally. The same features that make catch and kill strategies attractive to policymakers also make them hard to mobilize against.²⁷⁵ It is hard to imagine a public groundswell against neutral-sounding and technical doctrines such as hypothetical jurisdiction and forum non conveniens.²⁷⁶ And even if a movement could coalesce, those same features make it hard to get Congress to act. Diffusion, obscurity, and seeming neutrality not only facilitate the creation of catch and kill but also insulate it from reform.²⁷⁷

The Supreme Court is another option. The Court could revise some of the catch or kill doctrines addressed in this Article or could suggest that remand rather than dismissal be the appropriate disposition in a removed case. Professor Redish called for the Supreme Court to police legislative deception,²⁷⁸ which at least has the allure of interbranch competition.²⁷⁹ But asking the Supreme Court to cut back on the judiciary’s power seems less likely to succeed.²⁸⁰ This is especially true given that the current Supreme Court seems congenial to the deregulatory results of catch and kill.²⁸¹ While the Supreme Court sometimes cuts back on the power of federal courts,²⁸² it would be surprising if the Court did so in a way that contradicted the (seeming) substantive preferences of the justices.

Relying on the states to alter catch and kill is also likely to be unproductive. Although the federalism effects of catch and kill might motivate states to reassert their sovereign prerogatives,²⁸³ the nature of catch and kill makes responses difficult. In other work, I have emphasized how states can respond to federal procedural decisions that cut back on court access by expanding state jurisdiction and resisting the temptation to mirror federal procedure.²⁸⁴ These strategies are much less useful here: Catch and kill jurisdiction takes cases away from the states, so state court jurisdiction and procedure have no bearing.

It is possible that state officials asserting state interests will have a slightly better chance of motivating Congress. States seemingly have privileged access to Congress relative to the public at large.²⁸⁵ But as described above, catch and kill strategies are low salience, so I think it is unlikely that state actors would be sufficiently interested in mounting a lobbying campaign and unlikely that Congress would listen. And, of course, it is possible that those state actors with such access are on board with the substantive agenda of catch and kill so that they benefit from passing the buck.²⁸⁶

B. Retail Responses

More promising alternatives focus on individual cases, though of course these responses do not even aspire to universality.

Some options arise in the lower federal courts. Many of the doctrines described above have developed without the express approval of the Supreme Court.²⁸⁷ That path has shielded these doctrines from scrutiny,²⁸⁸ but it also leaves lower courts as potential policy reformers. For example, the Supreme Court has ducked opportunities to address international comity abstention.²⁸⁹ A couple of circuits have endorsed it, but many have not yet weighed in.²⁹⁰ Perhaps presenting arguments about the role of this doctrine in catch and kill cases might persuade those undecided courts to think twice. If there is variation among the circuits or districts, then we should expect litigants (and their lawyers) to shop among state courts in light of the federal law to be applied if their cases were removed.²⁹¹

The lower courts also play a role in the application of catch and kill. Many of the doctrines described in this Article entail substantial discretion in their application.²⁹² Indeed, this discretion contributes to the “delegation” that obscures how catch and kill works.²⁹³ But this delegation also means that individual trial judges must participate in each exercise of catch and kill. Therefore, there will be opportunities to influence the application of catch and kill in specific cases. Arguments about democracy, federalism, and the judicial role might persuade some judges to stay their hands.

There also may be a role for the federal executive branch in the application of catch and kill in individual cases. Specifically, at least for those doctrines that purport to effectuate federal interests, the executive branch could appear in court to disclaim those interests. For example, various jurisdictional doctrines are grounded in the notion that foreign affairs are a peculiarly federal subject,²⁹⁴ while various abstention and abstention-like doctrines are grounded in the notion that foreign affairs disputes are unfit for judicial resolution.²⁹⁵ But were the federal executive, through the State or Justice Department, able to tell the court that no such interests were implicated by the particular case, then perhaps lower court judges might decline to catch or kill.

This type of executive intervention is not a fantasy. In a case concerning the Fukushima disaster, for example, the Ninth Circuit invited the United States government to weigh in on the application of international comity abstention and forum non conveniens.²⁹⁶ The United States took the position that the district court did not abuse its discretion in declining to dismiss on those grounds.²⁹⁷ This is not, to be clear, an argument that courts should defer to the executive branch.²⁹⁸ But if the United States government expressly disclaims an interest in the litigation, that is pretty good evidence that deference to the political branches is not required.²⁹⁹

Notably, relying on retail strategies in individual cases has distributional consequences. Presumably, not all parties will be equally successful at persuading lower court judges to reject catch and kill. Unsophisticated parties, nonrepeat players, and perhaps foreign plaintiffs may face stronger headwinds with these retail strategies.³⁰⁰ A similar idea applies to executive branch intervention. It seems likely that those who are able to get the attention of the federal executive are not otherwise powerless.³⁰¹ Still, to the extent that catch and kill is a problem, these interventions can cut back on it.

Conclusion

A federal court asserts jurisdiction on a somewhat dubious theory, and then dismisses the case on a federal procedural doctrine that would not apply in state court. The outcome of any such case likely will not make headlines. But when added together, the repeated use of catch and kill by federal courts works a change in the substantive law—often state substantive law—without going through the rigors of a legislative or electoral process. Even if the outcome in any such case is correct, the overall practice should raise red flags.

* Professor of Law, Northwestern Pritzker School of Law. Thank you to Rachel Bayefsky, Pamela Bookman, Aaron-Andrew Bruhl, Kathleen Claussen, Kevin Clermont, Allan Erbsen, Jill Fisch, Kellen Funk, Maggie Gardner, Martha Kiela, Bryan Lammon, David Noll, James Pfander, Aaron Simowitz, Mila Sohoni, and Nina Varsava.