Author ORCID Identifier

Thomas Arthur 0000-0003-0411-0824

Richard Freer 0000-0003-3068-0070

Document Type

Article

Publication Date

1991

Keywords

Supplemental jurisdiction statute, Diversity suit, Intervention, Alienage, Congress

Abstract

Ah, the strawman model! Where would Professors Rowe, Burbank, and Mengler be without it? At a minimum, they would have a much shorter article. If Professor Freer in fact torched the entire farm, it is because there was so much dry straw lying around after the three drafters fin­ished tilting with the strawmen they created in their response to Professor Freer's article. The drafters spend more than half of their article arguing the irrelevant points that a statute was needed after Finley, that the stat­ute was consistent with recommendations of the Federal Courts Study Committee, and that Professor Freer "really doesn't like Kroger .... "

In so doing, the drafters sidestep the two key points Professor Freer's article made about the supplemental jurisdiction statute. First, it is very poorly drafted, creating ambiguity for cases that formerly were clear and creating numerous problems in others. Second, the statute was passed without thorough public ventilation and congressional scrutiny. This flawed process not only failed to clarify the language, but also allowed controversial, largely anti-diversity, changes to be slipped through in the guise of legislation that merely codified pre-Finley practice.

First Page

963

Publication Title

Emory Law Journal

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