In this episode, I interview Adam Sopko. Adam Sopko is (or was then) a third-year law student and the editor-in-chief of the Northwestern Law Review. In this episode Adam offers advice about adjusting to law school. We then discuss at some length the topic of snap removal and his law review article about the subject. Snap removal refers to the forum defendant rule of 1441(b)(2). Because that statute prevents removal only by forum defendants who have been properly "joined and served," some defendants remove otherwise-unremovable cases by filing the notice of removal before the forum defendant has been served. "Snap" refers to the fact that the notice of removal might be filed mere minutes after the action was filed in state court. Near the end of the episode, Adam also offers very good advice for students who are writing law review notes.
This interview was recorded July 29, 2020.
In this episode, I interview Adam Sopko. Adam Sopko is (or was then) a third-year law student and the editor-in-chief of the Northwestern Law Review. In this episode Adam offers advice about adjusting to law school. We then discuss at some length the topic of snap removal and his law review article about the subject. Snap removal refers to the forum defendant rule of 1441(b)(2). Because that statute prevents removal only by forum defendants who have been properly "joined and served," some defendants remove otherwise-unremovable cases by filing the notice of removal before the forum defendant has been served. "Snap" refers to the fact that the notice of removal might be filed mere minutes after the action was filed in state court. Near the end of the episode, Adam also offers very good advice for students who are writing law review notes.
This interview was recorded July 29, 2020.
Welcome to the civil procedure podcast. This episode is an interview with Adam[inaudible] that took place in late July, 2020. Adam is the editor in chief of the Northwestern law review. In this interview, I discuss with Adam various topics, including his advice for law students. We discuss his note about snap removal, and he also offers advice for students who are writing law review notes. I hope you find it useful.
Speaker 2:[inaudible]
Speaker 1:Adam, welcome to the podcast. I look forward to this conversation with you. Our prior conversations have been entirely in writing. And so this is our first live interaction. Our paths first crossed because we were both doing some work on snap removal, and I found your work to be so smart and creative in the way that you analyze the issue is something that I thought would be especially useful for our listeners to hear. And ultimately, I want to talk about that paper, but initially I want you to talk about you. So can you give us a bit of a history of Adam Topco
Speaker 3:First? I just want to say thanks so much for having me, um, it's a, it's a real pleasure to be here. Um, I always look forward to, to chatting, um, procedure and complex litigation and particularly snap removal. And, um, I was just wanting to, to thank you for the kind words about, about my paper and, uh, thank you for the thoughts that you shared, um, about it. They were, they were very helpful. So I appreciate you reading it and thinking about me. Um, I'm a rising three O um, at Northwestern I worked for about, uh, eight years in management consulting before coming to law school. And that span was enough to convince me that, uh, corporate life, um, the law firm life was not the path for me. So I'm pursuing a public interest career. I spent my first summer at an organization in New York city called the Brennan center for justice. And this summer I'm at the American civil liberties union remote as are, I think, most. Where
Speaker 1:Are you from
Speaker 3:Originally? I'm from Northeastern, Pennsylvania, and in an area of the state called the Pocono mountains, very rural.
Speaker 1:And can you share with us a highlight of your civil procedure course since you are a happy and recent?
Speaker 3:I think the highlight for me was perhaps common for many one else. So for many of your listeners, because reading Neuer, I think that case for me was the case method in the sense that to prepare for class, you read cases, um, like contracts or torts or other classes, but it was dissimilar in that it was unlike really anything are the discussion. The following discussion in class, I probably could have prepared for, I guess I said woefully unprepared for the ensuing discussion. Um, the day we discussed Pennoyer, which was the first one or two classes and because it was just so unlike, um, everything, it kind of threw me back in my seat a little bit, so to speak of what was to come for the remainder of the course. And I think that that really kind of planted the seed for me to really enjoy civil procedure so much, which is that it's, you know, kind of in contracts, I think everyone is entered into a contract of some kind. Um, and so they kind of have an understanding of the bartering and, you know, you know, meaning of the minds and, and all of that. And so some of the discrete doctrines, you know, are, are maybe hard to kind of wrap your head around at first things like jurisdiction and stuff like that. And so what procedure, I mean, I can think of many law students who have really thought about that, you know, much less, you know, really experienced that. I mean, maybe they've been involved in litigation and in a personal capacity or something like that, but it's just so foreign, I think when, when you're kind of coming into law school that, um, you kind of don't know what to make of it. And, um, I mean that in, in, in a good way, and I think as the course progressed in my experience and why I continued to really love the course was that it it's really like lawyers law. You know what I mean, contracts kind of sits at the intersection with, um, business and, um, you know, constitutional law, you know, is kind of stuff that, that, you know, you kind of read about in the news, especially recently, it's a little, it's a little easier to kind of understand, whereas the civil procedure, I mean, you don't really read about it too much outside of your class and your readings, um, for, for class. And I think that, that, that, that's what that's what makes it so special and so unique. And that's what really pulled.
Speaker 1:So did you receive some advice that gave you the confidence to situate that befuddling and confusing nature of civil procedure as a good thing, rather than a bad thing?
Speaker 3:You know, some, some fellow classmates who were two L's and three L's that kind of said that law school is really gonna be quite foreign and especially at the outset and people really learn at different rates and different speeds and different times, and the rate at which, you know, you learn, or I learned doesn't necessarily reflect on how the ultimately grasp the material. That was really true for me with civil procedure, because it's so abstract or just so foreign, but keep, keep your foot on the gas and pen to kind of just stay, stay committed to the course and let it play out. I mean, your professors have designed their, their syllabus, um, in, in whatever way it is, but they've designed it in a way to help you learn not to make it hard on you. And so know that that, um, if things are kind of going all over the place that you're definitely not alone in that amongst your classmates and that the professor has likely designed it that way to help. So that by the end, you have a firm understanding of pleading and personal jurisdiction and subject matter jurisdiction, venue, whatever, whatever
Speaker 1:The law students and the law professors interests are totally aligned. You want to succeed and we want you to succeed.
Speaker 3:I think there's definitely like a threshold where if every single person is raising your hand in the class, you know, that that's feedback for them to, to maybe slow down a little bit or, or right. Yeah.
Speaker 1:Fair enough. Let's get to snap removal as a transition. Did you cover snap removal in your civil procedure?
Speaker 3:No. I actually came across the topic, uh, is the national national law.com. I think it's the national law journal. There was just an article. I don't remember it, it might've been right after an encompass, which was kind of like the first real court of appeals case. I'm sure we'll discuss later on, um, had just come out or something like that. So it was just reading about it and I, you know, it kind of has a snazzy kind of name Sanford removal. And I went to my professor and was like, what is, what is this all about? And so then we started talking about it and then, um, I kind of got sucked in. And so I had to kind of start thinking about it and that's kind of how I came across the topic,
Speaker 1:Set the stage so that we can, uh, talk about your papers. So diversity jurisdiction allows federal courts to hear cases between citizens of different states. And so even though it's not a federal law issue, it's just a pure state law issue, but it finds its way into federal court on what's called diversity jurisdiction. And the basic principle, there is the idea that maybe a federal court would be a more neutral forum. And then on top of diversity jurisdiction, of course, we then have this notion of removal where if a case isn't in federal court, but the plaintiff could have filed in federal court removal allows a defendant to remove that case from state court to federal court. And the one exception to that general rule that allows the defendant to remove if the plaintiff could have filed in federal court. But didn't the one exception is that if the grounds would have been diversity, we don't allow a forum defendant to remove and that's referred to as the resident defendant rule or the forum defendant rule. And the idea there is that, well, there's no reason to have this more neutral forum. If the person that would be invoking the federal court is already a citizen of the home state. They shouldn't have to worry about prejudice or bias in their home court. So what's the problem that you're trying to solve.
Speaker 3:So, um, and as you noted, um, about, about removal, um, so removal is, uh, creature of statute and the, the exception to the rule that, that, that you noted the form defendant rule is in the primary removal statute, um, which is section 1441. And that's really where snap removal comes from. And that's where the litigation is kind of fought over is, is, um, the text of the form defendant. And so what, what it's about is when a plaintiff files a lawsuit naming at least one forum defendant, and the defendants have been named in the suit, but remove the action before they've been served and service is a necessary condition to bring loss and how that works. It relies on snap removal. That's the mechanism that allows, um, arguably, um, defendants to remove that suit to
Speaker 1:The statute, the form defendant rule that prevents removal by an in-state defendant of diversity cases. The way that statute is worded is that it restricts removal by an in-state defendant that has been properly joined and served. So if they haven't been served, the argument goes, well, maybe a forum defendant can remove,
Speaker 3:Right? So the form defendant rule does not allow removal. It bars removal, if any of the parties properly joined and served as defendant is a citizen of the state where the lawsuit was brought. So if there are, um, if so, if one of the defendants named is a citizen of that forum state, and they're both named in the suit, joined in the suit and then served the form, defendant rule says, you can't, you cannot remove it. So, um, some creative lawyers came up with an argument based on the text, because removal again is a statutory procedure that because removal says the form, defendant rule says that those parties that are properly joined and served well, if you're not served, then the rule doesn't doesn't bar removal, that's really over a simplified distilled version, but that's what snap removal in the word
Speaker 1:Snap, where's that
Speaker 3:Coming from initially snap removal and in the eighties and nineties typically was a function of this, this kind of norm or practice of courtesy copies, where a plaintiff would say to a future defendant, Hey, you and I are in this contract dispute. I don't really want to Sue you, but I'm ready to look. I just faxed you or just FedEx you a copy of this thing. I'm going to file on this date. If you don't do whatever. And so defendants then would say, oh my gosh, they're about to Sue us. Well, I want this to be in federal court, not state court. So I'm going to keep my eyes peeled for state court filings. As soon as I see that complaint hit, I'm going to file my notice of removal. It moved a little slower, but with the advent of e-filing, that is, um, plaintiffs could just file online. Electronic filing things kind of picked up. It's like turning the treadmill up a little bit. And, um, because with e-filing came docket monitoring and what that is is basically, uh, it's like Google alerts, um, except for, um, filing lawsuits. And so you can set up a monitoring service either in-house for yourself or hire someone else to do it for you. And that says, whenever you or your corporation or your organization or your union, or whatever it is, is named in, in a, in a suit that's been filed, you get a notification. And so, um, that picked up speed very quickly. And, um, some of the cases I found and are you found in, in, in your papers is, I mean, they're happening in seconds now is, is where the suit is filed. The defendant gets a notification, and then they filed their notice of removal in, in, I mean, 45, 50 seconds, shorter than it took, took me to say that that's the idea where the snap comes from the speed at which defendants are removing.
Speaker 1:Although the processes of filing are smooth and simple, the processes of service have not evolved at the same pace. So it's not that a plaintiff can just eat bio and he served under most state laws. That's not how it works. So service is still trapped into some older regimes that in some circumstances require you to wait for a civil action number from the clerk or require you to use a sheriff. So there's that gap in there that allows a defendant to run to court. And
Speaker 3:For example, in New Jersey where a lot of snap removal litigation arises, their service requires a tracking number like you noted. And oftentimes that tracking number can take three, four or five days to get it. And so at the timeline, cause timing is very crucial is, um, the plaintiff will file a suit. And if the defendant has a tracking service, they get the notification, but service isn't going to happen for three, four or five days, giving someone with the ability to monitor dockets, plenty of time to file a notice of removal.
Speaker 1:Okay. So we've talked about how defendants are taking advantage of the and served language in the forum defendant rule to accomplish these snap removals. What makes this a problem for you? How is this different than any other technicalities that good lawyers take advantage of and lesser attorneys miss?
Speaker 3:Initially it was maybe just a, a little creative lawyering. Um, it was, it was largely used by out of state defendants and it was not happening all that often. And by previously, I mean, eighties, nineties, but more, more recently. And by recently, I mean, in the past two years, which is where my project kind of picks up, the practice has really changed. And there, there are several factors and in which has led it to become a problem. And some of the factors that have led to that we've already touched on, which is the advent of electronic dockets and talking, monitoring and e-filing, but the other is just, um, awareness of the practice. And it's become problematic because courts have become more, more sympathetic to it. And it's, it's, it's become used more often. And the most problematic feature of snap removal, um, I argue is that it's being used almost entirely by forum defendants. So the very parties who the form defendant rule was crafted as saying, well, removal, as you noted, um, in your, your kind of background is about preventing bias. And so if you're a form defendant, we really don't have to be worried about that. Um, and so we're not gonna, w we're gonna, we're going to limit your right to remove. And snap removal is a way to kind of hack that premise of the right to remove. And so that's kind of one, one issue, but it's become very problematic because in my research I've found that snap removal is used almost exclusively by corporations in suits, brought by individual plaintiffs. And, um, more specifically in products liability in personal injury cases. So these are the kind of paradigmatic, um, snap removal case based on my research is actually inconsistent with the kind of, uh, existing thinking of what the kind of typical or paradigmatic snap removal case that the kind of initial thinking was that it was, uh, plaintiff's kind of litigation shod litigation. Tourists is, um, uh, not so nice term, uh, used, which is essentially where plaintiffs look for a state forum to Sue a corporation. And because that state seems to have some kind of features that would be best for the plaintiffs, whether it's juries are just sympathetic to the claims that are being brought, or there are, um, evidentiary rules are they're, they're, there's something that they think that the cards are stacked in their favor if they Sue Acme corporation in this state. So they're assuming an out of state corporation in a state that just gives them, uh, some kind of perceived or actual benefit. And so snap removal is a way for these corporations to get away from these plaintiffs who are doing, what's referred to as forum shopping, which is a term used to describe what plaintiffs are just kind of like kind of cherry picking, where they're going to bring the suit. And so that was kind of the narrative around snap removal. And so my research shows that that's actually not the case, that the vast majority of snap removal cases, in fact, the overwhelming majority are out of state suing large corporations, um, in products, liability suits in the states where those businesses are either headquartered or their principal place of business. So they're there, they're not shocked. They're actually coming to the corporation and suing them where, where they're at home and bringing the, these actions preferability actions, which are in state court claims against these corporations and they're then being removed. So that is problematic in the sense that one notion of, um, the division between state and federal jurisdiction is, is kind of implied in diversity jurisdiction. And the logic of removal is that for forum defendants, typically states would have a stake in kind of a lawsuit that implicates some of their own citizens of their state. And that's kind of, what's at play here. I, I argue in my, in my paper
Speaker 1:To emphasize a point that you made, you know, one reason that a Mainer might go to New Jersey to Sue the drug company, is that they'd be worried about getting personal jurisdiction over that company in Maine. So to avoid the personal jurisdiction question, they go where the defendant is, but then they do want the advantage that they perceive to be in a state court rather than a federal court, but then they don't get the benefit of that choice.
Speaker 3:Right. And, uh, where are you just use there? Something that I discuss, you know, a very important feature of the adversarial system that we have in the American legal system is, um, plaintiff's choice that is plaintiff's choose the forum. And the Supreme court has echoed that notion countless times and important procedural cases, um, and how that just plays a very important role in both burden shifting and just, just the way the system is, is designed, um, and snap removal. My, my kind of research shows short circuits and actually really, um, do again, due to the confluence of various factors really kind of makes it defendant's trace wherein the defendants get, uh, this notification that they've been sued in court and oftentimes due to their resources and legal sophistication, they can kind of decide, do we want to, you know, where do we want to litigate this? Do we want to let it proceed in state court? Or do we want to remove it and litigate in federal court? And something further that I've found was that there was an odd grouping of about 50 something between 50 and 60 cases that I found where the parties actually consensually agreed to remain after removal. Now, I don't, I don't really know. It may, maybe to a certain extent it's unknowable of kind of why they did that. But my inclination that I kind of propose in my, my paper is that snap removal for a lot of these drug companies or kind of consumer goods, corporations that are being that are using snap removal most often and their outside counsel is that snap removals almost becoming like a, just a matter of course. And so they're named in a suit. They just snap remove it to, by themselves to give themselves time effectively, to give themselves the choice of choosing whether state or federal court and be the oddity of these re of these consensual remains, at least suggests that that's the case. Otherwise, why would they have removed in the first place? So I think that that, that, that, that kind of supports this, this idea that, um, snap removal is just a mechanism that gives defendants control over a decision that has for centuries been the PR the province and the, uh, the option of, of the planet.
Speaker 1:I'd like you to respond to a policy argument for why one might read the forum defendant rule strictly a narrowly. And that policy argument would be based upon the asymmetry that exists for plaintiffs and defendants. And that asymmetry would be, Hey, look, there is not something called the forum plaintiff rule. That operates as an exception for diversity jurisdiction in Ohio. One can Sue a Pennsylvania in an Ohio federal court yet when that Ohio and the Pennsylvania and in the Pennsylvania state court, the form defendant rule, put some constraint on the defendant's ability to access a federal court. Why that asymmetry,
Speaker 3:This whole kind of scheme is, is a, is a creature of statute. And I think that a lot of these are policy decisions that Congress that's one decision that, that they,
Speaker 1:Adam, another strength of your article is that it demonstrates the substantial work that you did empirically trying to get a sense of the magnitude of this phenomenon. Can you share that with us?
Speaker 3:I tried to find every instance of snap removal that I could for 2018 and 2019. And the reason I kind of took that approach was to, was in response to a testimony that was given in the fall of 2019 by members of the plaintiff's bar kind bar. And then, um, some, um, Metro city academy, the discussion there, I think, centered around premises and an understanding of snap removal from both from all, uh, participants. That was not my sense as a tool was that wasn't entirely accurate. And so my paper, um, sought to kind of dig into that a little bit more. And what I found was that really the, the empirical claims made in the testimony there, and in a lot of the cases is based on a really important article law review article that was published a handful of years ago by Valerie tannery, that that sought to do an empirical examination. Um, and what she found and what of informed the initial pharmacies was that there were about, you know, maybe 40 or 50 instances, um, you know, a year like around 40 time, there were about 40 cases, about 40 cases a year that are snap removed and it's succeeding less than half the time. I don't recall. I think it was something like 45% or something like that. Success rate that kind of informed this notion that's not removals uncommon. And when it does happen more often than not the case is remanded. So my paper shows that, um, on average, it's happening a little more than three times that in terms of case volume and, um, and, and more specifically that it, that it's succeeding, um, a little more than 90% of the time. And so that's a stark change from, uh, you know, the last examination and shows that that snap removal is, is much more common, um, and is succeeding much more often. And as I note in my paper, and we've already discussed a little bit, is looking a good bit different from even just, um, Valerie's paper a couple of years ago, which, and by different, I mean, specifically that it's, it's almost entirely formed defendants who are removing and the increase is significant. And so that, that, that, that was one of the primary kind of, um, findings of my empirical research.
Speaker 1:And one reason it's happening preps with increasing frequency as the three circuit courts. Now I've given it the green,
Speaker 3:The first case was in 2017 out of the third circuit, um, um, a case, um, encompass versus stone mansion. And then it was an insurance company, um, versus a restaurant, um, and that of in Pennsylvania. Um, and then the second case was a year later givens versus Bristol-Myers Squibb was a little bit more, I think, representative of what my data set shows, which is individuals bringing products, liability claims against the pharmaceutical company. And then the final case, um, was this year. So 2020, um, was the fifth circuit that was Texas brine. And so that, that was, uh, you had another kind of different, um, fact fact sets in the other cases. But, um, so that's yeah, so we have three, but the, the kind of interesting thing about, um, those cases is that my research shows that the overwhelming majority of snap removed cases are coming out of the third circuit. And so while Texas Brian is, is, is relatively recent. Um, and I, I didn't track cases from 2020 at least givens doesn't. There doesn't seem to be, uh, an over a, a great deal of cases coming out of the second, second circuit. And so something that I talk about, my papers, I think perhaps one reason for this is because snap removal is really a tool for a lot of like products manufacturers and pharmaceutical companies. And there just aren't that many located within the jurisdiction of second circuit. So New York, Connecticut, and Vermont, whereas in the third, um, there are a substantial number of, um, neutral, uh, of pharmaceutical companies and medical device manufacturers in New Jersey. I think that, uh, I think, uh, uh, New Jersey is actually referred to by one of the members who, uh, who testified as the medicine chest of the, of the United States. And, uh, again, not my words, but, um, yeah, so, um, that, that, that's something that I discuss. And so I, I, I don't know how much of a role that precedent is, is playing in, in, in the increase in its it's used. I mean, it's certainly a factor to be sure, because I think, you know, at least within those circuits defendants now know that that if they snap remove a case and then it gets, it gets challenged, that removal is permitted, you know, that, um, 1441 B2 in the second, third and fifth circuits needs to be read according to its alleged plain meaning.
Speaker 1:And so those three circuit courts have taken a very textualist approach. What are other courts doing and how are they avoiding the text, which seems to be pretty straightforward,
Speaker 3:The courts that grant remand and kind of deny snap removal reason, and a couple of different ways, but generally they, they typically take like, uh, it looked to the statutes purpose. And so this, this gets to, I'm not sure if you're, if you discuss this with your students, um, we, we didn't cover this in my one also civil procedure, but, um, because this is this largely turns on statutory interpretation and snap removal. Uh, the vast majority of courts began with the plain meaning, but an exception to the plain meaning to construing statutes, plain, meaning is, um, the absurdity doctrine. And basically if a plane meaning construction or an interpretation of a statute would result in, uh, an outcome that would just be absurd, then you, you, you're supposed to construe the statute away from that resolved. And so these courts typically reason that yes, you know, maybe we'll concede, not all of them do, but will concede that the meaning is, is clear. It's not ambiguous. Um, but, um, this result is just so absurd when you consider that the, the, the, the, the courts consider that, um, the reason for this role is to bar removal by a form defendant. And here we have a form defendant, you know, a corporation based in New Jersey, removing, moving to the district of New Jersey. We can't, um, you know, we can't permit that. So that, that, that, that's, that's the majority of the courts that, that grant ReadyMan, however, there's a small number of courts that actually, um, grant me, man, along a plain meaning like a textual basis as well. Um, again, you know, these are fewer, but they, they, um, kind of say that's one way to read it, but we actually think that the better meaning when we really take a deep dive on the statute is, you know, they just pull apart the text and they look at, um, within the, your students want to, um, pull up, uh, 1441 B2, but they, they look at the words any, um, and the fact that, um, some also just, just look at that, um, others look at the fact that defendants within, um, 1441 B2 is plural. And they reason that removal is only permitted when there are at least two defendants and at least one is, is served. And the overwhelming majority of these actions involve a single, uh, in-state defendant removing, in which case if at least one has to be served, the form defendant would, if, if the, if it, at least one party has to be served in farm, defendant is served, then of course removal would be barred as we discussed. And so, um, that's kind of a, like a plain textual reading and, and the, and then of course, but like I mentioned, they also kind of that that kind of gets into the purpose reasoning.
Speaker 1:So there are many of us who think this is a problem that needs a fix, some have proposed legislative solutions that would modify text of the form defendant rule, and you've proposed a judicial solution. So let's talk about that.
Speaker 3:Sure. So, um, yes, as he noted there in several fixes or solutions proposed, um, you and your colleagues have proposed one, um, I know professor fender at Northwestern Hellman at Pittsburgh, you know, there, there, there have been several, um, different solutions, but these are all these have all been legislative. So why there, whether it's adding a new provision to their, to their removal statute, um, maybe in 1446 or, or, um, an amendment to 1448 for, for kind of like post removal service or amending the form defendant rule, um, to just strike service as a condition for the form defendant rule. But again, all of these turn on, um, Congress taking action of some kind. And, um, my paper actually rejects that. I take the position that it's perhaps, um, not very likely. And the reason I kind of argue that is, um, the political economy that, that kind of governs legislative change of, of any kind. And particularly within this niche area of jurisdictional statutes and, you know, snap removal is probably outside the top 500 priorities for voters, even those who are aware of it. And as opposed to things like climate, um, or, or, um, gun control or healthcare, you know, the, the kind of issues that, that you, you know, you read about and on the front page of newspaper, and you see on network television all the time, snap removal is not one of those things. And so that is to say that the kind of like individuals who would, who would be kind of pushing to amend the statute or enact one of fixes that have met any of the fixes that have been proposed, the kind of the interests are, are not there. Whereas on the other side of the ledger, that is the, the parties who have an interest in keeping snap removal, intact and permitted that, and fighting against legislative change or amendments are organized and are well-resourced. And so the kind of example that I point to was, and some of the examples I point to was a drug price cap on a COVID vaccine was Congress was trying to get that put into the first kind of COVID stimulus package that was passed earlier this summer and the pharmaceutical lobby killed it and had it, um, eliminated. And despite there being a coalition of, uh, consumers fighting and, and pouring lobbying dollars into that, they lost to the, uh, ultimately to the interests of the pharmaceutical Bobbie, and, and the reason I'm talking about the pharmaceutical lobby again, is that recall that, that this device snap removal is used most often by, um, medical device and pharmaceutical corporations. And so this is a real tool that they, that they use. So instead, what I've proposed is that judicial solution, and I kind of use the device of a bit of an analogy, kind of a literary device from a case from 1842. I I'm, again, I'm not sure if we discussed this, um, if, if it comes up in your class, but, but, uh, uh, swift versus Tyson, which is not a removal case, to be clear, it's a choice of wall case, but it implicates the same asymmetry of part is that is, uh, you know, individual plaintiffs against big corporations, um, railroads oil companies, and the big kind of mega corporations of, um, the turn of the century and the gilded age and swift versus Tyson created this kind of, um, this doctrine called federal common law or general law, which, which essentially allowed federal judges just to decide when they are going to apply state law and when they are going to apply federal Commonwealth. And, um, again, while, while snap removal is not a choice of law, it does not implicate choice of law because it's, it's state law, uh, up and down the federal common law that swift created bled to this hi-jinks and machinations and kind of, um, kind of absurd behavior on the parts of defendants. It was straight at best in, in a case that the taxi case. Um, and if, if you, if you want to read, um, justice Holmes kind of lay into general law read is the scent in that case, but it kind of highlights the high watermark of how these kinds of like neutral principles of, um, statutory interpretation, which is what purportedly led to the result of general law, even when we're kind of like this restrained judiciary or arrive reading statutes, according to like their plain meaning, which is arguably what the court did in swift can nevertheless arrive at a result that that is just really bad policy. And that was the case. That was that, that was, that was what was created by general law and swift. It just exacerbated the asymmetry between, um, plaintiffs suing corporations. And so you have workers suing their employer for tort claims or whatever it might be. And general lodge has made it nearly impossible for them to prevail just short of impossible. Professor ed Purcell is, is just the leading person on this and just has written some phenomenal books that if you're, if, um, if any of your students are interested in swift and any of that, I, I really encourage them to look up. Professor Purcell's work. It's, it's just phenomenal on this. So I kind of argued that the same as happening, based on my findings from an empirical work with, with snap for me. And I use that to, to, um, argue for a judicial solution. Cause this general law was kind of on the loo was let loose, so to speak for about a century. And it, it was swift was overruled in a case that, um, all, all one else love, which is, um, eerie. And so, um, eerie over ruled swift, but it did it in, in a really important way. And that, and that's why I kind of use it is that justice Brandeis basically says again, you know, while it was a choice of walk, hasty opinion is written at a really high level of abstraction and really just gets at how via this kind of like true and, and pure reasoning and the kind of like purity of the doctrine, whatever it was worth at the time in 1842 has really resulted in a huge mess. And so he sought to cure that. And, um, it was the courts who stepped in and it was not the legislature who stepped in, but the courts, you know, kind of created it, even though the statute was passed originating general law, but it was the courts who created it. And it was the courts who stepped in and said, as a matter of policy, we just can't have this. This is manifestly unfair. And that the, the legal system has to provide justice for those who are marginalized. And that was what was happening with general law. And so I've kind of argued by showing my, um, empirical findings that snap removal is doing is doing,
Speaker 1:And you do it beautifully. The invocation of the swift to Erie development as a cautionary tale is just beautifully told in your paper, you really, to be commended on that. And, you know, seeing the parallel that the rules of decision act as interpreted in swift, we have happening in the form defendant rule with respect to snap removal, favoring, the same type of constituents. It was really well done. And in this article that Adam wrote, uh, for the benefit of our listeners is called swift removal as opposed to snap removal. So he's using that case name swift. And so if it wasn't just beautiful and elegant enough, it also has to be clever making all of us scholars jealous. Um, as we conclude here, uh, Adam, I want to give you the chance to give a piece of advice to students writing a note. I also want to commend you while you're thinking about your advice, commend you for choosing a, finding a discrete topic where you can master all of the relevant literature. That is a prerequisite in my mind for a good student note, knowing the literature is key to making a contribution to it. And that's what this piece does. It makes a contribution.
Speaker 3:I appreciate that. So advice for students, I think the first thing is being a little less concerned about being right. So like their argument or their proposition being the fit like this is the home run that is just going to like fix this problem in fourth amendment or bankruptcy or whatever it is like, this is it. And I think as law students, we're all just so primed on like, just getting things right. But I think it's weird in legal scholarship. That's less of a concern. It's not to say not being precise and like misstating the law or something like that, but just like your, your, your solution doesn't necessarily need to be right, as opposed to, you know, being okay being wrong, but being wrong and like interesting and adventurous ways that I think get scholars who otherwise aren't going to read a student note or don't really care, frankly, to read it and to, or like, you know, skin in at least, you know, and th it's a thing, this is interesting, they're wrong. You know, this would never work, but this is an interesting take, or this is an interesting perspective or a new approach to this question. So that would be my first piece of advice is to kind of get away from that idea that if I can't solve it, I don't want to write about it. My second would be to find an advisor who, again, maybe it doesn't necessarily need to be like the expert on that narrow, tiny, narrow topic, but at least someone who knows enough about their literature, that they can help pull you back when you're reading in the wrong direction or whatever it might be. And how to say for me, um, professor Zach Clopton at Northwestern was invaluable in that sense. So the takeaway there, I think for students is, is to, is to think of that topic, do a little initial research, spend tonight, read a handful of articles, read some cases, jot down some ideas and engage a faculty member. They don't need, maybe you don't even need to have an in class, but find a faculty member and just ask them and show them that you've done some initial research and show you, you know, maybe float a couple ideas past them and, and see what they think. Law professors love to write and think about this stuff. And so, you know, I think to the extent that you can just show them that you're committed to doing the work and you're interested in it, I think the overwhelming majority of them, it was my experience would be receptive to at least hearing what you have to say. Um, so that those would be my two pieces.
Speaker 1:Good, great advice. As your parting remarks, Adam, I want you to recommend a book you have already invoked at Purcell's name. I could not agree more. I'm at four of his books that are on my bookshelf immediately in front of me. They are fantastic. Any other book that you would recommend?
Speaker 3:It's tough. Cause I immediately, you know, the last couple of books I've read, um, through then have been Purcell's. I keep on my nightstand to kind of like wind down, especially when all I've been reading our cases or whatever law review articles. Um, I keep, uh, just like a collection of Sherlock Holmes of like all of'em Conan Doyle's work. I'll just pick it up and open to a random page and just start reading for a little while, until I fall asleep. If anyone is looking to kind of disconnect from their case readings and stuff, and is a fan of literature is at least willing to give it a shot. I, I would suggest, um, Conan, do I have any, most of them I think are
Speaker 1:Thank you, Adam.[inaudible] for your scholarly contribution on a subject that I care about and thank you in advance for your contribution to a profession that I adore. It's an honor to have you as a colleague. Thank you, Adam.
Speaker 3:Thank you so much. And thanks for doing this podcast. Be a huge asset to the students. I wish I had something like this.