50:5 Removing Removal’s Unanimity Rule

Abstract

In December 2011, Congress passed legislation intended in part to prevent plaintiffs from “cheating” in the removal game. As this Article shows, this legislation solves only part of the problem it purports to remedy. Even worse, it entirely ignores a related problem that has for too long gone unnoticed. This Article argues that by codifying a longstanding unsound requirement of removal—the unanimity rule—Congress has disregarded and entrenched opportunities for abuse by both parties to the litigation. Scholars and lawmakers alike have overlooked the negative implications for fairness and transparency inherent in the unanimity rule. This Article is the first to examine this significant oversight.

The Article begins by elucidating the compelling incentives to exploit the removal process. It then demonstrates how both plaintiffs and defendants can utilize the requirements of the unanimity rule to subvert the system. This Article is the first scholarly piece to use game theory to diagram the strategic behavior that the unanimity rule engenders. It concludes with a bold proposal—that Congress abandon the unanimity rule and establish a framework whereby a judicially determined primary defendant has the sole authority to make the removal decision. This reform would substantially curtail improper strategic behavior, advance the normative values of fairness and transparency underlying the Federal Rules of Civil Procedure, and comport with the current focus on the primary defendant in class action and multi-jurisdictional litigation.