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8 J. Mo. B. 1 (1952)

handle is hein.barjournals/jrmobar0008 and id is 1 raw text is: JOUUUAIX- THE MISSOURI BAR OFFICIAL ORGANIZATION OF ALL MISSOURI LAWYERS Vol. 9 January, 1952 No. 1 Trends In Federal Practice By Rubey M. Hulen, United States District Judge, St. Louis Addru bae. Oe AueiLftloa of S Loot, No-bo 2, 1931. NOTES are all at end of article. on Page 51.-Editr. Your representative requested me to talk to you about the United States Dis- iet Court. I shall comply by discuss- sg trends in Federal Court practice. When a judge discusses legal questions sublicly and in the abstract it may lead v assumptions not intended. I would 7emind you, if a judge can write obiter lictum into an opinion, he should have it least the same liberty of action on 6s judicial occasions. A discussion of practice in federal 'ourt can well start with the year 1938. :n that year two things occurred which !epresent outstanding achievements. It ias been stated by some members of the bar that they represent the outstanding idvances in our profession since the ounding of the Republic. First there vas the Erie decision,' holding that ex- !ept in matters governed by the federal 1onstitution or by acts of Congress, he law to be applied by a federal court, n any case, is the law of the state. Whether the law of the state shall be leclared by its legislature in a state tatute or by the highest state court in , decision, is not a matter for concern -f a federal court. There were circum- tances that stamped drama on the iric ruling. It overruled Story's long- ntrenched decision in the Tyson case.' here had been reversals of individual ases. The Erie ruling was a reversal .f a basic judicial concept, representing he reason why hundreds of important ases had been won and lost in federal ourts. Prior to the Erie ruling the ederal courts were free to determine chat the substantive law was in diver- ity of citizenship cases. The result ras that a litigant might have a good ause of action or defense in the state ourt, but if the case were tried across he street in a federal court he would tave no cause of action or be without a lefense. The Erie decision was a some- chat late discovery on the part of the lupreme Court that the rulings of the ighest court of a state constitute law n the same sense as enactments of a tate legislature. The Supreme Court aid in the Erie case, the Tyson decision -and by inference over a century of ,ulings based on it-represented an un- constitutional interpretation, by prior majority members of the Court, of the Rules of Decision Act.' So we find now, where jurisdiction rests on diversity of citizenship, a federal court is in effect only another court of the state.' By virtue of authority placed in the Supreme Court by Act of Congress, the Federal Rules of Civil Procedure went into effect, also in the year 1938. One important restriction placed on the rule- making power of the Supreme Court is-- the rules shall not modify substantive rights, including the right of trial by jury. The result of these two events, the Erie decision and adoption of procedural rules, was paradoxical. The Supreme Court acknowledged its obligation to fol- low, and directed all lower federal courts to follow, in substantive matters, in di- versity cases, the laws of the state where the cause of action arose. By the new federal rules uniformity of procedure was achieved in all federal courts in all states. The paradox becomes a myth when viewed in the light of reason. The rules do not extend or limit the jurisdiction of federal courts or the venue of actions. But that does not mean these factors are free from change. There is a declared tendency at this time to re- strict federal court jurisdiction. There are before Congress several bills to raise the jurisdictional amount above $3,000.00 in diversity cases. There is one bill that would make a corporation a citizen of any state in which it is doing business, instead of the state of its incorporation, for purposes of diversity jurisdiction. The sole purpose of the bill is to restrict REMINDER Pay 1952 rEnollment Fee of $12 To Your Circuit Clerk by January 20, 1952. u- a Rubey M. Hulen the jurisdiction of federal courts and prevent removal in many cases. This bill has been approved by lawyers, judges, and judicial conferences. The law in federal courts on jurisdiction is now just as strict as it has ever been. It is still necessary to plead jurisdictional facts in exact conformity with the stat- ute. There is a presumption against jurisdiction. This presumption con- tinues until the case is finally adjudi- cated. Jurisdiction cannot be accorded by stipulation or acquiescence in trial. It is the duty of the judge to raise the point should it come to his attention.' A recent opinion of the Supreme Court' shows the trend. A defendant may re- move a case from the state court, lose on trial in the federal trial court, and then take the position in the appellate -court that the case was not removable, secure a reversal and order of remand to the state court. There are exceptions to this rul- ing. They are those cases which uphold judgments in the district courts even though there was no right of removal, or the removal proceedings did not fol- low the statute. They are cases where the trial court would have had original jurisdiction of the controversy had it been brought in that court in the first in- stance. A tort case recently came to the federal court on removal from the state court, in which a resident plaintiff sued a non- resident corporation. The corporate de- fendant was a chainstore operator. Joined with the non-resident corporate defendant was a resident defendant. The resident defendant was an employee of Wieeting of All Committees at Jefferson City on January 25 & 26. List on pages 3-7. 1

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