Catch and Release Jurisdiction

In Catch and Kill Jurisdiction, Professor Zachary Clopton sheds light on an increasingly common phenomenon in which federal courts are expanding the power of the federal judiciary in a way that frustrates the enforcement of substantive rights. Federal courts expansively interpret their jurisdiction to reach cases that arguably belong in state court, then apply federal procedural doctrines to dismiss the cases on non-merits grounds. First catch, then kill. Clopton argues we find catch and kills when the federal court system is not overly burdened and in areas where federal judges are “hostile” to a class of claims or litigants.

Catch and kills also incentivize more catch and kills. When a federal court endorses these tactics, it legitimizes the dubious readings of federal jurisdiction that support them. This encourages defendants to argue for more expansive readings of jurisdiction or make similar arguments in other courts. As more cases flow into federal courts that are of a kind that federal judges oppose, these judges will expand or sharpen the catch and kill trap.