ON THE DEATH OF DIVERSITY JURISDICTION: 

AN EMPIRICAL STUDY ESTABLISHING THAT DIVERSITY 

JURISDICTION IS NO LONGER JUSTIFIED 
 

SCOTT DEVITO
*
 

 

If you have your why for life, you can get by with almost any how. 

    – Friedrich Nietzsche 
 

ABSTRACT 

 
American federal diversity jurisdiction was created in response to the 

concern that out-of-state litigants would suffer bias in state court due to their 

out-of-state status (“geographic bias”). As attested in the record from the state 
ratification conventions, in the legislative history of diversity jurisdiction, and 

in seventeen U.S. Supreme Court opinions (the most recent in 2021), the 

creation of an impartial tribunal to mitigate geographic bias was and is the 

central rationale for federal diversity jurisdiction. Even though geographic bias 
is the rationale for diversity jurisdiction, no (prior) empirical studies have 

established whether geographic bias remains a problem in the American civil 

justice system. This Article provides the results of an empirical study of 
objective data, representing over one million cases across thirty years, 

demonstrating that geographic bias is no longer an issue in the civil justice 

system. Given that this result eliminates the very reason for the existence of 

federal diversity jurisdiction, the outcome provides a strong basis for Congress 
to either modify or abolish diversity jurisdiction. 

 

TABLE OF CONTENTS 

 
I. The Death of Geographic Bias and the Rationale for Diversity Jurisdiction 
II. The History of State Responses to Geographic Bias 

A. From Ancient Empires Through the Founding 
B. From the Founding to the Present 

1. An Unexplained Birth 
2. Early Expressions of the Rationale for Diversity Jurisdiction 
3. Congress’s Concerns 
4. The U.S. Supreme Court Agrees 
5. Geographic Bias Is the Rationale for Diversity Jurisdiction 

III. The Historical Empirical Evidence: Surveys of Attorneys 
IV. The Study: Empirical Evidence Eliminating the Rationale 

A. One Million Records of Filings and Removals from 1990 to 2019 
B. Geographic Bias Is Dead 

1. Three Models of Forum Choice 
2. No One Cares About Geographic Bias 

 
* Visiting Professor of Law, Ave Maria School of Law; J.D., 2003, University of Connecticut 

School of Law, Honors; Ph.D, 1996, Philosophy of Science, University of Rochester. 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

234 

3. The Least Impactful Variable 
4. Useless for Prediction and Explanation 

V. The End of Diversity Jurisdiction? 
 

I. THE DEATH OF GEOGRAPHIC BIAS AND THE RATIONALE FOR 

DIVERSITY JURISDICTION 

 
The Framers of the United States Constitution believed that protecting out-

of-state litigants from bias in state courts due to their out-of-state status 

(“geographic bias”) was so important to the administration of an impartial 

judicial system that they extended the federal judicial power to cases and 
controversies “between Citizens of different States” through the Diversity 

Clause of the U.S. Constitution.
1
 The view that protection from geographic bias 

was, and remains, the rationale for diversity jurisdiction is well attested in the 
record—from the state ratification conventions

2
 through the legislative history 

of the Diversity Clause as enacted in the U.S. Code,
3
 and in seventeen U.S. 

Supreme Court opinions
4
 from Bank of the U.S. v. Deveaux in 18095 to Texas v. 

California in 2021.
6
 

It is not possible to determine today whether, at the time of the Founding, it 

was true that out-of-state litigants were subject to sufficient geographic bias to 

justify creation of federal diversity jurisdiction.
7
 But we can determine whether 

geographic bias is a problem today.
8
 Answering that question is vitally 

important because mitigating the effects of geographic bias is the very rationale 

for the existence of diversity jurisdiction
9
 and, if it is shown that geographic bias 

is no longer a problem for litigants, then Congress may be justified in modifying 

or abolishing diversity jurisdiction.
10

  

This Article is the first to present the results of an empirical study 

demonstrating that geographic bias is not a contemporary problem.
11

 This study 

 
1. See discussion infra Section II.B.  
2. See discussion infra Section II.B.2. 
3. See discussion infra Section II.B.3. 
4. See discussion infra Section II.B.4. 
5. 9 U.S. (5 Cranch) 61, 87-88 (1809) (holding the purpose of diversity jurisdiction is to 

address fear of bias in state court against out-of-state litigants). 
6. 141 S. Ct. 1469, 1469 (2021) (mem.) (Alito, J., dissenting). 

7. See discussion infra Section II.B.1. 
8. We can determine whether geographic bias is a problem today through an empirical study, 

like the one described infra, which in fact shows that geographic bias is not a problem today. See 
discussion infra Section IV.B. 

9. See discussion infra Section II.B.2-4. 
10. See discussion infra Section V.  
11. See discussion infra Section IV.B (demonstrating that geographic bias is not a current 

issue in forum choice). Previous empirical studies have all taken the form of surveys from 

attorneys. See discussion infra Part III. All but one of the surveys agreed that geographic bias was 
a factor in forum choice. Regardless of the merits of these surveys, they do not resolve the question 
of whether geographic bias is a current problem because they range from thirty to sixty years old. 
See id. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            235 

 

 
is based on three hypotheses relating to actions filed under diversity 

jurisdiction.
12

 First, if geographic bias is currently present in state courts, then 

in-state plaintiffs suing out-of-state defendants will have an incentive to file in 
state court to gain the benefit of that bias. As a result, we should find a negative 

correlation
13

 between the percentage of in-state plaintiffs and filing rates
14

 

because in-state plaintiffs will strategically file in state court. At the same time, 

we should see a positive correlation
15

 between the percentage of in-state 
plaintiffs and removal rates because out-of-state defendants will have an 

incentive to remove to federal court to gain the impartiality of the federal courts 

while in-state defendants will have no such incentive. Finally, out-of-state 
plaintiffs suing in-state defendants will have an incentive to file in federal court 

to avoid state court bias against them. This will produce a positive correlation 

between the percentage of out-of-state plaintiffs and federal filing rates as out-

of-state plaintiffs seek the impartiality of the federal courts while in-state 
defendants have no need to do so. 

After examining over one million diversity actions across thirty years, we 

conclude that none of these hypotheses are supported in the empirical record. In 
essence, we find that a litigant’s out-of-state status is not relevant to “forum 

choice” (the choice to file in federal or state court and the choice to remove from 

state court to federal court); consequently, geographic bias is not an issue in 
today’s civil justice system.  

This Article proceeds in four Parts. Part II provides an overview of the 

history of diversity jurisdiction in two sections. The first section reviews the use 

of special jurisdiction for aliens and outsiders from the time of the Hittite Empire 
to just before the founding of the United States of America. The second section 

details the history of diversity jurisdiction in the United States from the 

Constitutional Convention of 1787 to the present. Part III examines the limited 
record of empirical studies of diversity jurisdiction and the role geographic bias 

 
12. This Article solely examines filings in federal court and removals from federal court 

where the action was filed under diversity jurisdiction. For ease of reading, we may avoid 
repeating this limitation from time to time. Such omissions should not be understood as expanding 
the scope of actions studied beyond what is noted in this footnote. 

13. In a negative correlation, as one variable increases the other decreases. See, e.g., Lujan 
v. Colo. State Bd. of Educ., 649 P.2d 1005, 1043 app. n.1 (Colo. 1982) (Lohr, J., dissenting) 
(explaining correlation coefficient, negative, and positive correlations); DAVID L. FAIGMAN ET AL., 

MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 4:25 (2020-2021 
ed. Dec. 2020) (also explaining correlation coefficient, negative, and positive correlations); Tonja 
Jacobi & Matthew Sag, Taking the Measure of Ideology: Empirically Measuring Supreme Court 
Cases, 98 GEO. L.J. 1, 31 (2009) (further explaining correlations). 

14. The percentage of out-of-state plaintiffs or defendants and in-state plaintiffs or 
defendants should be understood, throughout this Article, as a percentage of that type of litigant 
in a county and year. Similarly, the filing rate and removal rate should be understood, throughout 
this Article, as the filing or removal rate in a county in a given year. 

15. In a positive correlation, as one variable increases the other also increases. See e.g., Lujan, 
649 P.2d at 1043 app. n.1 (explaining correlation coefficient, negative, and positive correlations); 
FAIGMAN, supra note 13, at § 4:25 (also explaining positive correlations); Jacobi & Sag, supra 
note 13, at 31 (further explaining positive correlations). 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

236 

plays in forum choice. Part IV includes our empirical analysis of geographic 
bias in diversity jurisdiction and demonstrates that geographic bias is not 

currently an issue in the civil justice system. Finally, Part V provides a short 

discussion of the implications of the results in this Article and sets the stage for 
the policy arguments that must follow from such empirical results.  

 

II. THE HISTORY OF STATE RESPONSES TO GEOGRAPHIC BIAS 

From at least the time of the Hittite Empire, states have adopted special 

rules, procedures, and courts to alleviate the problems caused by geographic 

bias. A review of the history of State responses to geographic bias will be helpful 

in establishing how geographic bias became the rationale for American diversity 
jurisdiction. This review occurs in two sections. The first Section in this Part 

provides an overview of how states and empires from ancient times to the 

founding of the United States addressed the threat of bias against alien litigants. 
The second Section of this Part shifts to the American experience and reviews 

the textual record of the rationale for diversity jurisdiction from the 

Constitutional Convention of 1787 to the present. This second review also 

demonstrates that the rationale for diversity jurisdiction in the United States is 
to counter geographic bias in state courts. 

 

A. From Ancient Empires Through the Founding 
 

As seen infra, the rules that govern the administration of justice have long 

taken into account the social and economic issues that arise when persons from 
different geographic locations and states interact and, inevitability, are led into 

conflict. It is not possible to know the motives behind laws written across a span 

of three thousand years, but, as we examine those rules, it seems likely that they 

existed to respond to the dangers that geographic bias posed to commerce, to 
strengthen social bonds, and to reinforce the state’s financial security.  

An early example of rules focused on commercial interests between parties 

from different states can be found in a thirteenth century B.C. edict from the 
Hittite king Hattušil III to the Ugarit king Niqmepa.

16
 The edict states that it has 

been issued to address difficulties caused by merchants from Ura (likely Hittite 

subjects) in Ugarit.
17

 The edict requires that Ura merchants leave Ugarit during 

 
16. See Reuven Yaron, Foreign Merchants at Ugarit, 4 ISR. L. REV. 70, 71 (1969) (discussing 

the RS tablets). This edict is found in the Ras Shamra (“RS”) documents discovered at Ugarit. Id. 
at 70 n.* (explaining the meaning of the abbreviation of “RS”). At this time, “Ugarit was a vassal 
kingdom of the Hittite emperor” and Ugarit’s kings were the “rulers and supreme judges of their 

country.” Ignacio Márquez Rowe, Anatolia and the Levant: Ugarit, reprinted in 1 A HISTORY OF 
ANCIENT NEAR EASTERN LAW 719, 720 (Raymond Westbrook ed., 2003) (discussing the structure 
of the Ugarit government). 

17. See Yaron, supra note 16, at 71-72 (explaining Clause II of the edict). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            237 

 

 
the winter,

18
 forbids them from acquiring property in Ugarit,

19
 and prevents Ura 

merchants from becoming Ugarit residents if they lose money entrusted to them 

by their superiors.
20

 The edict also requires that the Ugarit merchant, his sons, 
and his wife be turned over to the Ura merchant if the Ugarit merchant fails to 

pay what is owed to the Ura merchant.
21

  

We also find special rules applicable to insiders and outsiders in ancient
22

 

religious Jewish law.
23

 Under the Written Law,
24

 all people Jewish and non-

 
18. Id. at 71-73 (explaining Clause III of the edict). 
19. Id. (explaining Clause IV of the edict). 

20. Id. at 72-74 (explaining Clause V of the edict). 
21. Id. at 72, 74 (explaining Clause VI of the edict). 
22. The use of “ancient” in this context is only intended to indicate that Jewish Law has 

origins in the distant past and intends no judgment as to the present applicability of that law. 
23. It is beyond the scope of this Article to fully discuss the timeline for Jewish Law. For our 

purposes, it is only necessary to note that such law existed well before the current era and that it 
provided different laws for people for different categories of people. The Aleppo Codex, “the 
oldest Hebrew Bible in existence today . . . was written by scribes called Masoretes in Tiberias, 

Israel, around 930 C.E.” Jennifer Drummond, The Aleppo Codex, BIBLE HIST. DAILY (Nov. 27, 
2018), https://www.biblicalarchaeology.org/daily/biblical-topics/hebrew-bible/the-aleppo-
codex/ [https://perma.cc/3ECS-8H6X]. Unfortunately, while the Aleppo Codex was complete, on 
November 30, 1947, in response to the U.N. General Assembly voting in favor of the 
establishment of a Jewish state, a mob set fire to the synagogue in Aleppo where the codex was 
stored, destroying multiple pages of the codex. See Ronen Bergman, A High Holy Whodunit, N.Y. 
TIMES, June 25, 2012, at MM30. The Leningrad Codex is “[t]he only complete copy of the Hebrew 
Bible from the same [time] period.” See Biblical Archaeology Society Staff, Comparing Ancient 
Biblical Manuscripts, BIBLE HIST. DAILY (July 22, 2011), https://www.biblicalarchaeology. 

org/daily/biblical-topics/bible-versions-and-translations/comparing-ancient-biblical-
manuscripts/ [https://perma.cc/HBC8-7UPW]. There is an earlier translation of the Pentateuch in 
Greek, the Codex Sinaiticus, from around the fourth century A.D. See T.S. Pattie, The Codex 
Sinaiticus, 3 BRIT. LIBR. J. 1, 1 (Spring 1977) (discussing the Codex Sinaiticus). There are earlier 
Hebrew fragments of the Pentateuch including the Nash papyrus (around the second century B.C.) 
and the Dead Sea scrolls (from around third century B.C. to the first century A.D.). See George 
Anastaplo, Law & Literature and the Bible: Explorations, 23 OKLA. CITY U. L. REV. 515, 619 
(1998) (discussing the ordering of the Ten Commandments in the Nash papyrus); Isabel Kershner, 

Israel Reveals Newly Discovered Fragments of Dead Sea Scrolls, N.Y. TIMES, March 16, 2021, 
at A9 (discussing newly discovered fragments of biblical texts). Moreover, we have evidence of 
the existence, in some form, of the Hebrew Bible from the Ketef Hinnom scrolls dated to the later 
seventh or early sixth century B.C. containing portions of the Priestly Benediction from the Book 
of Numbers. See John Nobel Wilford, Solving a Riddle Written in Silver, N.Y. TIMES, Sept. 28, 
2004, at F00001 (discussing a new analysis of the Ketef Hinnom scrolls). The existence of a 
Jewish State prior to this point is supported by, for example, Assyrian inscriptions of Shalmaneser 
III, King of the Neo-Assyrian Empire (reigned 859-824 BCE) that reference Jehu of the house of 

Omri. See Baruch Halpern, Yaua, Son of Omri, Yet Again, 265 BULL. AM. SCHS. ORIENTAL RSCH. 
81, 81 (1987) (discussing reference to “Yau(a), son of Omri” in inscriptions of Shalmaneser III 
dated to 841 B.C.). The earliest reference to an entity called “Israel” is found on an inscription of 
Pharaoh Merneptah dated to 1207 B.C. See ERIC H. CLINE, 1177 B.C. THE YEAR CIVILIZATION 
COLLAPSED 92 (Barry Strauss ed., 2014) (discussing the Exodus of the Hebrew people from 
Egypt).  

24. Scholars note two sources of Jewish law: Written Law and Oral Law. See David 
Hollander, Jewish Law for the Law Librarian, 98 L. LIBR. J. 219, 223 (2006) (noting the two 

 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

238 

Jewish, are subject to the “Noahide” laws
25

 while Jewish persons alone are also 
subject to the code given to Moses at Sinai (the “Sinaitic” law).

26
  

Similar to the edict of Hattušil III, fourth century B.C. Greek city-states 

entered into treaties with each other to establish laws and procedures that would 
apply when citizens of one city-state had a legal dispute with citizens of the 

other.
27

 These treaties could include the creation of special tribunals for disputes 

between citizens and non-citizens.
28

 For example, a “convention between the 
Locrian towns of Oeantheia and Chalaeum” required that: 

 

[i]f the Oeantheian plaintiff was a metoec
[29]

 in Chalaeum, the action 

was to be tried by the ordinary tribunals of Chalaeum consisting of 
citizens chosen by lot, and that he was entitled to plead through his 

proxenus. But if he was not a metoec there his suit was to be brought 

before the specially appointed ζενοδίκαι [zenodikai/magistrates] at 
Chalaeum, and he was empowered to choose from among the leading 

residents of the town a jury of nine or fifteen citizens according to the 

 
sources of Jewish law). According to Jewish belief, the Written Law (the Torah or Pentateuch) 
was given to the Jewish people at Sinai, through Moses, after the exodus from slavery in Egypt. 
See id. (discussing the written and oral sources of Jewish law). Because the Written Law must be 
interpreted, Moses was also given the Oral Law, which provides both direct explanation of certain 
laws and techniques for interpreting the Written Law as a legal text. See, e.g., Samuel J. Levine, 

Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts, 24 
HASTINGS CONST. L.Q. 441, 444-45 (1997) (discussing the Written Torah and Oral Torah). “The 
Oral Law was initially handed down orally from generation to generation, until it was compiled 
and edited in 220 C.E. by Rabbi Judah Ha-Nasi.” See Hollander, supra note 24, at 224 (discussing 
the Mishna). 

25. The Noahide laws require all people (Jews and non-Jews) to create a judicial system and 
forbid people from engaging in “bloodshed, theft, sexual immorality, blasphemy, idolatry, [and] 
eating a limb torn from a live animal.” See Suzanne Last Stone, Sinaitic and Noahide Law: Legal 

Pluralism in Jewish Law, 12 CARDOZO L. REV. 1157, 1157 (1991) (listing the Noahide Code’s 
mandates and prohibitions); see also Nahum Rakover, Jewish Law and the Noahide Obligation 
to Preserve Social Order, 12 CARDOZO L. REV. 1073, 1074 (1991) (discussing the Noahide 
commandments). 

26. See generally Stone, supra note 25, at 1163-64 (discussing historical analysis of Noahide 
laws); see also José Faur, The Fundamental Principles of Jewish Jurisprudence, 12 N.Y.U. J. 
INT'L L. & POL. 225, 226 (1979) (discussing the Noachide laws); Rakover, supra note 25, at 1077 
(discussing Maimonides’ view that the knowledge of the Noahide commandments arose from 

tradition, natural law, and the Torah). 
27. See, e.g., DOUGLAS M. MACDOWELL, THE LAW IN CLASSICAL ATHENS 220-21 (H. H. 

Scullard ed., 1978) (discussing treaties relating to disputes between citizens and foreigners). 
28. See, e.g., Patrick J. Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal 

Positivism, and a Brave New World for Erie and Klaxon, 72 TEX. L. REV. 79, 83 (1993) 
(discussing how Ancient Greeks and Romans created special tribunals for legal conflicts 
involving aliens). 

29. A metoec (also called a “metic”) was a noncitizen resident of the city state who “shared 

responsibilities for defense of the city but had no political or welfare rights.” Sarah V. Wayland, 
Citizenship and Incorporation: How Nation-States Respond to the Challenges of Migration, 20 
FLETCHER F. WORLD AFF. 35, 39 (1996) (discussing the legal status of noncitizens in ancient 
Greece). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            239 

 

 
importance of the case. Should the action, however, be brought by a 

citizen of Chalaeum in the interests of public order, the tribunal was 

then to be composed of an odd number of jurors, nominated by the 
demiurgi (δημιουργοί), the principal magistrates of the town, and the 

matter in litigation was to be decided by the majority.
30

 

 

The ancient Greek city-states also developed rules so that contract disputes 
between Greeks from different city-states were governed by the law of the 

defendant’s domicile (lex domicilii) and could only be brought in the 

defendant’s home jurisdiction.
31

  
The approach of having different courts for aliens and subjects seen in the 

ancient Greek convention between the Oeantheia and Chalaeum, was also 

adopted in Ptolemaic
32

 Egypt. When Egyptians and Greeks had a contract 

dispute, if the contract was in Greek form, then it would be tried before the 
Greek courts (the chrematists).

33
 But if the contract was in Egyptian form, it was 

tried before Egyptian courts (the laocrites).
34

  

The Roman approach to the problem of disputes between citizens and non-
citizens evolved over time. Initially, the Romans applied Roman law (ius civile) 

only to disputes between Romans.
35

 Conquered people were required to use 

“their own customary law or the law of their former (conquered) state.”
36

 This 
created difficulty when there was a conflict between Romans and peregrines 

(the conquered subjects of the Roman Empire).
37

 To resolve this problem, the 

Romans eventually “introduce[ed] the institution of the peregrine praetor 

(magistrate).”
38

 This institution eventually resulted in the creation of a new 

 
30. Coleman Phillipson, 1 THE INTERNATIONAL LAW AND CUSTOM OF ANCIENT GREECE AND 

ROME 194 (1911) (internal footnote added). 
31. Id. at 199-200 (discussing a treaty between Athens and Phaselis). 
32. The years 305 B.C. to 30 B.C. are called the “Ptolemaic period.” J.G. Manning, The 

Representation of Justice in Ancient Egypt, 24 YALE J.L. & HUMAN. 111, 117 (2012) (providing 
the dates of the Ptolemaic period). It is so named because it begins at the reign of Alexander the 
Great’s general Ptolomaeus who ruled Egypt after Alexander’s death. See P.G. Monateri, Black 
Gaius: A Quest for the Multicultural Origins of the “Western Legal Tradition”, 51 HASTINGS L.J. 
479, 519 (2000) (discussing the history of Egyptian law). 

33. See, e.g., Raphael Taubenschlag, THE LAW OF GRECO-ROMAN EGYPT IN THE LIGHT OF 
THE PAPYRI, 332 B.C. - 640 A.D. 366-68 (1944) (noting that the court of the chrematistæ had 
jurisdiction over disputes between Greeks as well as Egyptians signing a Greek contract); Hessel 

E. Yntema, The Historic Bases of Private International Law, 2 AM. J. COMP. L. 297, 300-01 
(1953) (discussing the history of conflicts law).  

34. See, e.g., Taubenschlag, supra note 33, at 366 (noting that “the local Egyptian court of 
the laocrites” was competent to hear cases between Egyptians as well as between Greeks and 
Egyptians provided the contract was Egyptian); Yntema, supra note 33, at 300-01 (discussing the 
history of conflicts law). 

35. See Genc Trnavci, The Meaning and Scope of the Law of Nations in the Context of the 
Alien Tort Claims Act and International Law, 26 U. PA. J. INT’L ECON. L. 193, 199 (2005) 

(discussing the ius gentium).   
36. Id.  
37. Id. 
38. Id. 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

240 

system of private law (ius gentium) that, by the third century A.D. effectively 
replaced or merged with the ius civile.

39
 Thus, toward the end of the Western 

Roman Empire, the Romans had, effectively, moved toward applying the same 

set of laws to every free person within the empire. 
Around the sixth century A.D. (after the fall of the Western Roman 

Empire),
40

Rabbi Nahman, writing in the Babylonian Talmud, adopted a choice 

of law rule under which the law of the husband’s residence applied to a dispute 
over the ketubah

41
 between a woman from Meḥoza and her husband from 

Neharde’a.
42

  

As we turn to English history, we see the development of “personal law”—

the principle that “the law of the community to which a person belongs 
determines the law applied to the person and his or her transactions.”

43
 This type 

of law is quite similar to that seen in the early days of the Roman Empire as 

applied to peregrines.
44

 Personal law arose because England had “a multiplicity 
of local communities [that] enforced their laws.”

45
 For example, King Alfred’s 

(848/49-899) laws noted the existence of different laws in Mercia, Wessex, and 

Kent.
46

 Similarly, “Edgar (959-75) and his descendants admitted the right of the 

Danes to their own laws.”
47

 In 1020, King Cnute (990-1035) beseeched his 
people to obey both ecclesiastic law and secular law.

48
 Later that century, the 

laws of William the Conqueror (1028-1087) established “that England was or 

had been divided between three laws, the West-Saxon, the Mercian and the 
Danish.”

49
 The Normans also introduced the notion of “trial by battle” into 

England;
50

 but, by the reign of Henry I (1068-1135), London, Winchester, and 

 
39. Id. at 200. 
40. The Western Roman Empire ended in 476 A.D. See Pedro A. Malavet, Counsel for the 

Situation: The Latin Notary, a Historical and Comparative Model, 19 HASTINGS INT’L & COMP. 
L. REV. 389, 411 (1996) (discussing the notary profession in Europe during the Middle Ages). 

41. Under Jewish law, a ketubah is a marriage contract given by a husband to his wife that 

lists his (and, upon his death, his estate’s) financial obligations to her. See WILLIAM F. PATRY, 7 
PATRY ON COPYRIGHT § 25.4 (March 2020) (discussing the origin of choice of law in the Talmud). 

42. See The William Davidson Talmud, Ketubot 54a, available at https://www.sefaria. 
org/Ketubot. 54a?lang=bi [https://perma.cc/HT43-GETG] (providing guidance on what law to 
use in enforcing a marriage contract between a wife from one jurisdiction and her husband’s estate 
where the husband was from another jurisdiction). The Babylonian Talmud was compiled around 
the sixth century C.E. See, e.g., Cnty. of Allegheny v. Am. C.L. Union Greater Pittsburgh Chapter, 
492 U.S. 573, 3095 n.13 (1989) (explaining that the Babylonian Talmud “is a collection of 

rabbinic commentary on Jewish law that was compiled before the sixth century”). 
43. MARIANNE CONSTABLE, THE LAW OF THE OTHER: THE MIXED JURY AND CHANGING 

CONCEPTIONS OF CITIZENSHIP, LAW, AND KNOWLEDGE 7 (1991). 
44. See supra text accompanying notes 35-39.  
45. CONSTABLE, supra note 43, at 7. 
46. Id. at 8.  
47. Id. 
48. See HEINRICH BRUNNER, THE SOURCES OF ENGLISH LAW 12 (Ernst Freund trans., 1908) 

(discussing the decrees of the Code of Cnute). 
49. F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 3 (1908). 
50. See JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT COMMON LAW 

39 (1898) (discussing trial by battle). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            241 

 

 
Lincoln were granted exceptions from it.

51
  

The geographic nature of personal law in England was further entrenched 

by the existence of local courts.
52

 Before the Norman Conquest, each shire had 
its own shire moot (court of justice).

53
 Following the Conquest, these shire 

moots became county courts
54

 that applied geographically local customs in 

judging disputes and applying the law.
55

 

The 1353 Statute of the Staple shows how the idea that one’s geographic 
origin point matters in what law is applicable was expanded to include the idea 

that a jury should fairly represent the geographic origin of the parties.
56

 

According to the 1353 Statute: 
 

[i]f a plea or dispute shall be moved before the mayor of the staple 

between the merchants or officials of the same, and in order to try the 

truth in this matter an inquest or proof shall be taken, we will that if both 
parties are foreign, it shall be tried by foreigners; and if both parties are 

denizens, it shall be tried by denizens, and if one party is denizen and 

the other alien, the one half of the inquest or proof shall be of denizens 
and the other half of aliens.

57
 

 

Thus, the Statute of the Staple required the makeup of the jury to, in some way, 
reflect the geographic origin (foreigner/denizen) of the litigants. The Statute of 

the Staple’s requirement of a trial of one-half citizens and one-half aliens for 

mixed litigant cases was extended the following year to all foreigners
58

 and for 

any jury on any court.
59

 This type of mixed jury acquired the name “jury de 
medietate linguae” in the sixteenth century.

60
  

The jury de medietate linguae was also applied when the parties were from 

the same geographic location but were different in, what was considered at the 
time, some “relevant” way.

61
 For example, during the High Middle Ages in 

England, Jewish people move to England and undertook key economic roles in 

English society.
62 

To protect Jewish people from bias by all-Christian juries, 

 
51. Id. at 40 (noting that battle by trial was “a novel and hated thing in England” and that the 

exception permitted proof by oath and battle). 
52. See CONSTABLE, supra note 43, at 11 (discussing various courts and their recognition of 

relevant customs). 
53. See MAITLAND, supra note 49, at 39 (discussing territorial divisions in England). 
54. Id. at 42. 
55. See CONSTABLE, supra note 43, at 11. 

56. Id. at 97 (discussing the Statutes of Edward III). 
57. Statutes of the Staple, 1353, 27 Edw. 3, stat. 2, § 12.  
58. See CONSTABLE, supra note 43, at 98 (discussing the Statute of the Staple). 
59. Id. at 100 (discussing the Statute of the Staple). 
60. Id. at 112 (discussing the jury de medietate linguae). 
61. Id. 
62. Prior to the Norman Conquest of England in 1066, there is little evidence of Jewish 

people residing in England and even less evidence of a settled community. At the same time, there 

 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

242 

Jewish people were given a right to a jury de medietate linguae—a jury that was 
one-half Jewish.

63 
When the Jewish population was expelled from England in 

1290, foreign merchants replaced them as financial agents of the King.
64 

This 

change did not produce specialized merchant law, merchant courts, or 
adjudicative procedures.

65
 Instead, foreign merchants were extended the right to 

trial by jury de medietate linguae— a jury with half of the jurors being from the 

same country as the foreign merchant— until 1870 when Parliament eliminated 
the right.

66
 

The jury de medietate linguae was used in the American Colonies and was 

known to the Framers. For example, a 1674 Massachusetts trial (which led to 

King Philip’s war)
67

 concerning three Native Americans accused of murdering 
another Native American was held with a mixed jury of White and Native 

American jurors.
68

 Although here, unlike in the standard jury de medietate 

linguae, the role of the Native American jurors was different from that of the 
White jurors—the Native American jurors “were to perform only auxiliary duty, 

‘to be with the said jury, and to healp to consult and advice with, of, and 

concerning the premises.’”
69

  

In 1783, the Pennsylvania Court of Oyer and Terminer granted a trial per 
medietatem lingua.

70
 The Court so granted the trial because “[t]he first 

legislature under the Commonwealth, has clearly fixed the rule, respecting the 

extension of British statutes, by enacting, that ‘such of the statutes as have been 
in force in the late province of Pennsylvania, should remain in force, till altered 

by the Legislature’” and such a trial right both existed under British rule and 

 
were robust Jewish communities in continental Europe including lands in France that were part 
of William the Conqueror’s possessions. Following the Norman Conquest in 1066 A.D., Jews 
began to move to England and play a role in the trades and as financial agents for the King. See, 
e.g., Deborah A. Ramirez, The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate 
Linguae: A History and a Proposal for Change, 74 B.U. L. REV. 777, 783 (1994) (discussing the 

arrival of Jews in medieval England); CECIL ROTH, A HISTORY OF THE JEWS IN ENGLAND 3-4 (3rd 
ed. 1964) (discussing the arrival of Jews in England after the Norman Conquest); ALBERT M. 
HYAMSON, A HISTORY OF THE JEWS IN ENGLAND 1-7 (1908) (discussing the role of Jewish people 
in England after the Norman Conquest). 

63. See Ramirez, supra note 62, at 783-84 (discussing the history of Jewish people in 
England from the period of the Norman conquest to the expulsion of all Jewish people from 
England in 1290). 

64. Id. at 784 (discussing the expulsion of Jewish people from England). 

65. Id. at 785 (discussing the treatment of alien merchants by English courts). 
66. Id. at 784-87 (providing an overview of the treatment of foreign merchants by the English 

courts and the elimination of the trial by jury de medietate linguae). 
67. Yasuhide Kawashima, The Pilgrims and the Wampanoag Indians, 1620-1691: Legal 

Encounter, 23 OKLA. CITY U. L. REV. 115, 119 (discussing how the colonists became more 
aggressive in expressing their jurisdiction over legal matters). 

68. See Mr. Easton of Roade Island, A Relacion of the Indyan Warre 1675, in ORIGINAL 
NARRATIVES OF EARLY AMERICAN HISTORY 7-8 & n.3 (J. Franklin Jameson ed., 1913) (noting that 

“[t]he jury trying the accused consisted of four Indians and twelve whites”).  
69. Kawashima, supra note 67, at 130 (quoting VI Records of the Colony of New Plymouth 

in New England 98 (Heritage Books 1998) (1855)). 
70. See Respublica v. Mesca, 1 U.S. 73, 75 (1783) (granting trial per medietatem lingua).  



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            243 

 

 
had not been abrogated in Pennsylvania.

71
 

In addition, Kilty notes that the right to a jury de medietate linguae was 

applicable in Maryland in the eighteenth
 
century.

72
 For example, in 1748, in 

Maryland, a trial for murder was tried under a jury of one-half aliens and one-

half citizens after the defendant claimed he was a foreigner.
73

 By 1789, the right 

to a trial per medietatem linguae was eliminated in Maryland by statute.
74

 

The framers of the U.S. Constitution were well aware of the Greek and 
Roman legal traditions,

75
 the practices of the English courts,

76
 and the idea of a 

jury de medietatem linguae. For example, James Madison received a letter from 

Thomas Jefferson contending that jury trials may be inappropriate for “disputes 
between a foreigner and a native,” but if trial by jury must be used, then “the 

remedy will be to model the jury by giving the medietas linguae in civil as well 

as criminal cases.”
77

 

The idea that one’s geographic origin (one’s place of domicile or residence) 
matters in what law should be applied and how justice should be administered 

has been present throughout recorded history. Sometimes, as in the case of 

Hittite king Hattusili III’s edict, the goal seems to be to protect commercial 
interests from the natural intrigues that arise when merchants deal with 

 
71. Id. at 74 (noting that “it appears in evidence that . . . a trial per medietatem lingua was 

allowed, in the case of a burglary committed by one Ottenreed, in the mansion house of Mr. 

Clifford.”). 
72. See WILLIAM KILTY, A REPORT OF ALL SUCH ENGLISH STATUTES AS EXISTED AT THE TIME 

OF THE FIRST EMIGRATION OF THE PEOPLE OF MARYLAND, AND WHICH BY EXPERIENCE HAVE BEEN 
FOUND APPLICABLE TO THEIR LOCAL AND OTHER CIRCUMSTANCES 152, 157 (1811) (discussing 
statutes made at Westminster in 1357 AD including that “[a]n inquest shall be de medietate lingua, 
where an alien is party”). 

73. Id. at 152. 
74. Id. (quoting The Act of 1789, Ch. 22, S. 5). 

75. See, e.g., Notes of James Madison (June 6, 1787), in 1 THE RECORDS OF THE FEDERAL 
CONVENTION OF 1787, 135 (Max Farrand ed., 1911) [hereinafter Farrand] (discussing Greek and 
Roman class conflict); Notes of James Madison (July 7, 1787), in Farrand, at 553 (noting 
Governor Morris’ point that the unity of ancient Greece was hampered by the retention of local 
sovereignty); Melancton Smith, Speech to the N.Y. Convention (June 20, 1788), in 1 DEBATES, 
RESOLUTIONS, AND OTHER PROCEEDINGS, IN CONVENTION, ON THE ADOPTION OF THE FEDERAL 
CONSTITUTION 195, 232-33 (Jonathan Elliot ed., 1827) [hereinafter DEBATES] (noting that, in both 
ancient Sparta and Rome, the people were used to a government run by a small group of nobles 

and that Americans were not). 
76. See, e.g., Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 

502, 535 (discussing how the English corporate law influenced and developed into the American 
practice of judicial review); Eugene Gressman & Eric K. Gressman, Necessary and Proper Roots 
of Exceptions to Federal Jurisdiction, 51 GEO. WAS. L. REV. 495, 525 (1983) (“In drafting article 
III, the framers were no doubt influenced by the traditional practices of local courts in England”); 
Michael H. Schill, Intergovernmental Takings and Just Compensation: A Question of Federalism, 
137 U. PA. L. REV. 829, 834 n.12 (1989) (“In addition to natural law, the Framers were likely 

influenced by English parliamentary and colonial practice”). 
77. Letter from Thomas Jefferson to James Madison (July 31, 1788), NATIONAL ARCHIVES, 

FOUNDERS ONLINE, https://founders.archives.gov/documents/Jefferson/01-13-02-0335 (last 
visited Oct. 16, 2021) [https://perma.cc/7DE4-JALQ]. 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

244 

different, and competing, states.
78

 At other times, as in the case of the jury de 
medietate linguae, the State has been concerned that parties to the transaction 

will be disadvantaged through cultural misunderstanding, lack of knowledge, or 

bias against the alien or foreign litigants. And, for long-lasting empires, like the 
Western Roman Empire (and, based on the results from the Study discussed 

infra Part IV, the United States), the idea of personal law and geographic bias 

fades over time as the separate pieces of empire knit together to form a single, 
unified entity.

79
 Sadly, because we lack any information as to the intent of the 

law, we are limited to mere speculation. 

 

B. From the Founding to the Present 
 

Thus far, we have examined the role one’s geographic origin played in the 

history of the law and judicial systems prior to the founding of the United States. 
Because of a lack of evidence as to the intent of those laws, we can only 

speculate as to why states and empires created special rules for aliens and 

foreigners. This changes as we turn to the American experience where we have 

ample textual evidence explaining the rationale for federal diversity jurisdiction 
and why the Diversity Clause was included in the U.S. Constitution.

80
  

This subsection reviews the textual record relating to the rationale for 

diversity jurisdiction from (1) the Constitutional Convention of 1787, (2) the 
state ratification conventions, (3) the legislative history of the Diversity Clause 

as enacted in law, (4) seventeen U.S. Supreme Court opinions, and (5) scholarly 

works. Combined, this record demonstrates that concern over the negative 
impact of geographic bias on out-of-state litigants is the rationale for diversity 

jurisdiction. 

1. An Unexplained Birth.—The Constitution, as adopted and promulgated 

by the Constitutional Convention of 1787, includes the Diversity Clause.
81

 Such 
inclusion entails that the Framers were concerned about the treatment of out-of-

state litigants in state courts.
82

 But, relative to its inclusion in the draft of the 

Constitution as promulgated by the Convention, that is all we know. The records 
of the proceedings of the Convention are silent as to why the Diversity Clause 

was included in the Constitution.
83

 

This absence of justification for the Diversity Clause may be due, in part, to 
the secrecy rules adopted by the Convention,

84
 which have resulted in there 

 
78. See Yaron, supra note 16, at 71-72 (explaining Clause II of the edict). 

79. Id. 
80. See discussion infra Sections II.B.2-4. 
81. See U.S. CONST. art. III, § 2. 
82. See id. (extending the judicial power to disputes between citizens of different states). 
83. See infra notes 84-89, 100-02 and accompanying text.  
84. Those rules required “[t]hat no copy be taken of any entry on the journal during the sitting 

of the House without the leave of the House. That members only be permitted to inspect the 
journal. That nothing spoken in the House be printed, or otherwise published, or communicated 

 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            245 

 

 
being limited information about the proceedings of the Convention.

85
 One 

source of such information is the notes taken by James Madison of the debates 

at the Convention
86

 which were published in 1840.
87

 Additional information 
about the proceedings can be found in diary entries from Robert Yates, Rufus 

King, James McHenry, and Alexander Hamilton, as well as in the Journal which 

is primarily “a calendar of resolutions and votes.”
88

 Unfortunately, these records 

do not provide any explanation for why the Diversity Clause was proposed and 
adopted.

89
 

A version of the Diversity Clause first appears in the Virginia Plan proposed 

by Governor Edmund Randolph
90

 which states:  
 

[T]hat the jurisdiction of inferior tribunals shall be to hear & determine 

in the first instance, and of the supreme tribunal to hear and determine 

in the dernier resort, all piracies & felonies on the high seas; captures 
from an enemy; cases in which foreigners or citizens of other States 

applying to such jurisdictions may be interested, or which respect the 

collection of the National revenue; impeachments of any National 
officers, and questions which may involve the national peace and 

harmony.
91

 

Given Governor Randolph’s inclusion of a diversity clause in the Virginia Plan, 
it is, at first, surprising to find that, on June 13, 1787, he proposed a resolution 

 
without leave.” See 1 Farrand, supra note 75, at 15 (providing the Journal entry from Tuesday 
May 29, 1787). 

85. See William Ewald, The Committee of Detail, 28 CONST. COMMENT. 197, 197-98 (2012) 
(discussing the Convention of 1787). 

86. Id. at 198; see also 3 Farrand, supra note 75, at 421 (stating, in a letter of Jefferson to 

Adams of August 10, 1815: “Do you know that there exists in manuscript the ablest work of this 
kind ever yet executed, of the debates of the constitutional convention of Philadelphia in 1788? 
The whole of every thing said and done there was taken down by Mr. Madison, with a labor and 
exactness beyond comprehension.”). 

87. William Ewald and Lorianne Updike Toler, Early Drafts of the U.S. Constitution, 3 PA. 
MAG. OF HIST. & BIOGRAPHY 227, 229 (2011) (discussing the proceedings of the Constitutional 
Convention). The official Journal of the Convention was published in 1819, “it was not deeply 
information [because it] contained little more than a record of the formal votes.” Id. 

88. See id. at 197. 
89. See supra notes 84-89, 100-02 and accompanying text. 
90. While a number of plans for a federal judiciary were proposed at the Constitutional 

Convention only the Virginia Plan included a reference to what we would call diversity 
jurisdiction. See James William Moore & Donald T. Weckstein, Diversity Jurisdiction: Past, 
Present, and Future, 43 TEX. L. REV. 1, 1-2 (1964) (discussing the history of the Diversity Clause) 
(emphasis added). See also Justice Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 
41 HARV. L. REV. 483, 485 (1928) (noting that “[t]he textual history of the diversity clause begins 

with the introduction of certain resolutions by Randolph on May 29, 1787”). 
91. Variant Texts of the Virginia Plan, Presented by Edmund Randolph to the Federal 

Convention, May 29, 1787, text A, reprinted in Charles C. Tansill, DOCUMENTS ILLUSTRATIVE OF 
THE FORMATION OF THE UNION OF THE AMERICAN STATES 955 ¶ 9 (1927) (emphasis added). 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

246 

to the Committee of the Whole House
92

 that both limited national jurisdiction 
and excluded a diversity clause.

93
 This resolution passed.

94
 Then, on July 18, 

1787, he made a motion limiting national jurisdiction that also excluded 

language relating to diversity jurisdiction.
95

 That motion passed.
96

 
It is likely that Governor Randolph proposed these limited versions of 

national judicial power in order to avoid unproductive debate at the Convention 

and move the issue to a sub-committee (“the Committee of the Detail”)
97

 which 
could more easily work out the scope of the national judicial power.

98
 This 

conclusion is supported by the Committee of Detail producing a draft of the 

Constitution with a broader scope of national jurisdiction than in Governor 

Randolph’s June 13 and July 17 motions, and that included the Diversity 
Clause.

99
 

As with the Convention in general, the records relating to the discussions of 

the Committee of Detail are extremely limited and are primarily found in the 
papers of James Wilson (“the Wilson Papers”).

100
 While the versions of the U.S. 

Constitution in the Wilson Papers do include copies of the Diversity Clause
101

 

they do not provide any evidence as to why the Diversity Clause was 

included.
102

 
Given the total lack of information as to the purpose of the Diversity Clause 

as proposed during the Convention, we must turn to later records relating to it 

 
92. The Committee of the Whole was the same as the Convention except, when acting as the 

Committee of the Whole the parliamentary rules were more flexible than the Convention. Ewald, 
supra note 85, at 199 & n.4 (discussing the rationale for a break in the Convention’s work and 
delegation of that work to the Committee of Detail). 

93. See id. at 223-24 (limiting national jurisdiction “to cases which respect the collection of 
the national revenue, impeachments of any national officers, and questions which involve the 
national peace and harmony.”). 

94. See id. 

95. See 2 Farrand, supra note 75, at 39 (proposing “[t]hat the jurisdiction of the national 
Judiciary shall extend to cases arising under the laws passed by the general Legislature, and to 
such other questions as involve the National peace and harmony”). 

96. See id. 
97. Id. at 23. The Committee of Detail was created by the Constitutional convention to take 

the Resolutions passed by the Convention and work them into a draft Constitution. There were 
five Committee members: Nathaniel Gorham, Oliver Ellsworth, James Wilson, Edmund 
Randolph, and John Rutledge. See Ewald, supra note 85, at 202-03 (discussing the formation of 

the committee). 
98. See Farrand, supra note 75, at 238 (stating Governor Randolph’s observation of how 

difficult it was to establish the powers of the judiciary and that “once established, it will be the 
business of a sub-committee to detail it”). 

99. See id., at 172-73 (noting that the jurisdiction of the Supreme Court shall extend to 
disputes between citizens of different states and that “[t]he Legislature may assign any part of 
th[is] Jurisdiction . . . in the Manner and under the Limitations which it shall think proper to such 
inferior courts as it shall constitute from Time to Time”). 

100. See Ewald, supra note 85, at 204-08 (discussing the history of documents relating to the 
Committee of Detail). 

101. 2 Farrand, supra note 75, at 147, 173. 
102. See generally id. at 129-89. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            247 

 

 
to understand the rationale for including it in the Constitution. 

2. Early Expressions of the Rationale for Diversity Jurisdiction.—While the 

records of the Constitutional Convention of 1787 are silent as to the rationale 
for including the Diversity Clause in the Constitution, the state ratification 

conventions provide considerable insight. The issue of diversity jurisdiction 

formed a minor part of the debates on federal judicial power which primarily 

focused on concerns about (1) federal courts lacking a right to jury trial,
103

 (2) 
plaintiffs using the difficulty (and expense) of defendants traveling to distant 

federal courts to gain an unfair advantage in litigation,
104

 (3) the difficulty in 

determining venue and choice of law,
105

 (4) federal judges lacking understating 
of state law,

106
 and (5) the possibility that the federal courts would eliminate the 

need for state courts.
107

 The portion of the debates that related to the Diversity 

 
103. See, e.g., Commonwealth of Massachusetts Recommendations for Alterations and 

Provisions to be Introduced into the Constitution, 2 DEBATES, supra note 75, at 177 
(recommending modification of the Federal Constitution to require that “[i]n civil actions between 
citizens of different states, every issue of fact, arising in actions at common law, shall be tried by 

a jury, if the parties, or either of them, request it.”); State of New Hampshire Recommendations 
for Alterations and Provisions to be Introduced into the Constitution, 1 DEBATES, supra note 75, 
at 326 (recommending that the Constitution include the clause that “In civil actions between 
citizens of different states, every issue of fact, arising in actions at common law, shall be tried by 
jury, if the parties, or either of them, request it”); Letter of Richard Henry Lee to Governor 
Randolph of Virginia, 1 DEBATES, supra note 75, at 503-05 (raising the concern that federal courts 
lack a jury right); Remarks of Mr. Thomas M’Kean Delegate to the Convention of the State of 
Pennsylvania, 2 DEBATES, supra note 75, at 539-40 (noting that “trial by jury is the best mode that 
is known”). We also find objection to the National Judiciary’s lack of a right to a jury in the 

newspapers. For example, in the October 10th, 1787 “Letter of a Federal Farmer” the anonymous 
author raises concerns that trials in State courts would be before a jury but, absent legislation by 
the federal Congress, those same actions brought in Federal Courts would, primarily, not be before 
a jury. See The Federal Farmer, LETTER III, OCTOBER 10, 1787, available at https://www. 
gutenberg.org/files/47110/47110-h/47110-h.htm#Page_134 [https://perma.cc/JC54-UGAZ]. 

104. See e.g., Letter of Richard Henry Lee to Governor Randolph of Virginia, 1 DEBATES, 
supra note 75, at 503-05 (raising the concern that cases will “be tried in a distant court”); Remarks 
of Mr. George Mason Delegate to the Convention of the Commonwealth of Virginia, 3 DEBATES, 

supra note 75, at 526 (noting the ease with which choosing a federal court far from the defendant’s 
home could “involve you in trouble and expense”); Remarks of the Honorable Samuel Spencer 
Delegate to the Convention of the State of North Carolina, 4 DEBATES, supra note 75, at 138 
(noting that in diversity actions brought in federal court “those persons who are able to pay, had 
better pay down in the first instance, though it be unjust, than be at such a dreadful expense by 
going such a distance to the Supreme Federal Court”). 

105. Remarks of Mr. Patrick Henry Delegate to the Convention of the Commonwealth of 
Virginia, 3 DEBATES, supra note 75, at 542 (asking “in what courts are they to go and by what 

law are they to be tried ? Is it by a law of Pennsylvania or Virginia? Those judges must be 
acquainted with all the laws of the different states.”). 

106. See id.  
107. See e.g., State of New Hampshire Recommendations for Alterations and Provisions to 

be Introduced into the Constitution, 1 DEBATES, supra note 75, at 326 (proposing that “[a]ll 
common-law eases between citizens of different states shall be commenced in the common-law 
courts of the respective states”); Remarks of Mr. Madison a Member of the Federal Convention 
before the Convention of the Commonwealth of Virginia, 3 DEBATES, supra note 75, at 537-38 

 



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248 

Clause were narrowly focused on concerns about geographic bias including 
concerns that geographic bias would harm commercial interests. 

This concern with geographic bias is evident in the remarks of Mr. James 

Wilson, a member of the Federal Convention and delegate to the Pennsylvania 
Convention,

108
 who notes that trust in the inter-state commercial system requires 

something like an impartial (federal) judicial system: 

 
[I]s it not necessary, if we mean to restore either public or private credit, 

that foreigners, as well as ourselves, have a just and impartial tribunal 

to which they may resort? I would ask how a merchant must feel to have 

his property lie at the mercy of the laws of Rhode Island. I ask, further, 
How will a creditor feel who has his debts at the mercy of tender laws 

in other states? It is true that, under this Constitution, these particular 

iniquities may be restrained in future; but, sir, there are other ways of 
avoiding payment of debts. There have been instalment acts, and other 

acts of a similar effect. Such things, sir, destroy the very sources of 

credit. Is it not an important object to extend our manufactures and our 

commerce? This cannot be done, unless a proper security is provided 
for the regular discharge, of contracts. This security cannot be obtained, 

unless we give the power of deciding upon those contracts to the general 

government.
109

 
 

James Madison, despite thinking diversity jurisdiction was a matter of little 

concern,
110

 also noted that it was necessary to avoid the possibility of “a strong 
prejudice . . . in some states[] against the citizens of others[] who have claims 

against them.”
111

 Madison further argues that avoiding local prejudice will be 

favorable to the commercial interests of the states: 

 
Let me observe that, so far as the judicial power may extend to 

controversies between citizens of different states, and so far as it gives 

them power to correct, by another trial, a verdict obtained by local 

 
(responding to concerns that the federal “this jurisdiction would extend to all cases, and annihilate 
the state courts”); Remarks of Mr. Patrick Henry Delegate to the Convention of the 
Commonwealth of Virginia, 3 DEBATES, supra note 75, at 542 (replying to Mr. Madison by stating 

that “I see arising out of that paper a tribunal that is to be recurred to in all cases, when the 
destruction of the state judiciaries shall happen; and, from the extensive jurisdiction of these 
paramount courts, the state courts must soon be annihilated.”). 

108. See 2 DEBATES, supra note 75 (listing Mr. Wilson as “a Member of the Federal 
Convention”); see id. at 415 (listing James Wilson as one of the delegates for the Convention). 

109. Remarks of Mr. James Wilson James Delegate at the Convention of the State of 
Pennsylvania, 2 DEBATES, supra note 75, at 491-92. 

110. See Remarks of James Madison a Member of the Federal Convention before the 

Convention of the Commonwealth of Virginia 3 DEBATES, supra note 75, at 533 (stating that “[a]s 
to its cognizance of disputes between citizens of different states, I will not say it is a matter of 
much importance.”) 

111. Id.  



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            249 

 

 
prejudices, it is favorable to those states which carry on commerce. 

There are a number of commercial states which carry on trade for other 

states. Should the states in debt to them make unjust regulations, the 
justice that would be obtained by the creditors might be merely 

imaginary and nominal. It might be either entirely denied, or partially 

granted. This is no imaginary evil. Before the war, New-York was to a 

great amount a creditor of Connecticut: While it depended on the laws 
and regulations of Connecticut, she might withhold payment. If I be not 

misinformed, there were reasons to complain. These illiberal 

regulations and causes of complaint obstruct commerce. So far as this 
power may be exercised, Virginia will be benefited by it.

112
  

 

This focus on geographic bias is also present in the remarks of Mr. Edmund 

Pendleton, President of the Convention of Commonwealth of Virginia:
113

 
 

But the principal objection of that honorable gentleman was, that 

jurisdiction was given it in disputes between citizens of different states. 
I think, in general, those decisions might be left to the state tribunals; 

especially as citizens of one state are declared to be citizens of all. I 

think it will, in general, be so left by the regulations of Congress. But 
may no case happen in which it may be proper to give the federal courts 

jurisdiction in such a dispute? Suppose a bond given by a citizen of 

Rhode Island to one of our citizens. The regulations of that state being 

unfavorable to the claims of the other states, if he is obliged to go to 
Rhode Island to recover it, he will be obliged to accept payment of one 

third, or less, of his money. He cannot sue in the Supreme Court, but he 

may sue in the federal inferior court; and on judgment to be paid one 
for ten, he may get justice by appeal. Is it an eligible situation? Is it just 

that a man should run the risk of losing nine tenths of his claim? Ought 

he not to be able to carry it to that court where unworthy principles do 
not prevail?

114
 

 

We also see allusion to geographic bias in the remarks of Mr. William 

Grayson: “[b]ut, Sir, the citizens of different states are to sue each other in these 
courts. No reliance is to be put on the state judiciaries. The fear of unjust 

regulations and decisions in the states is urged as the reason of this 

 
112. 3 DEBATES, supra note 75, at 535. 
113. See 3 DEBATES, supra note 75 (listing President and speakers’ names). 

114. See Remarks of Mr. Edmund Pendleton, President of the Convention of the 
Commonwealth of Virginia, 3 DEBATES, supra note 75; Remarks of James Madison a Member of 
the Federal Convention before the Convention of the Commonwealth of Virginia 3 DEBATES, 
supra note 75, at 549. 



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250 

jurisdiction.”
115

 
Mr. Davie, a delegate to the North Carolina Convention, noted that diversity 

jurisdiction supported the need for impartiality and linked that impartiality with 

commercial interests: 
 

The security of impartiality is the principal reason for giving up the 

ultimate decision of controversies between citizens of different states. 
It is essential to the interest of agriculture and commerce that the hands 

of the states should be bound from making paper money, instalment 

laws, or pine-barren acts. By such iniquitous laws the merchant or 

farmer may be defrauded of a considerable part of his just claims. But 
in the federal court, real money will be recovered with that speed which 

is necessary to accommodate the circumstances of individuals. The 

tedious delays of judicial proceedings, at present, in some states, are 
ruinous to creditors. In Virginia, many suits are twenty or thirty years 

spun out by legal ingenuity, and the defective construction of their 

judiciary. A citizen of Massachusetts or this country might be ruined 

before he could recover a debt in that state. It is necessary, therefore, in 
order to obtain justice, that we recur to the judiciary of the United States, 

where justice must be equally administered, and where a debt may be 

recovered from the citizen of one state as soon as from the citizen of 
another.

116
 

 

When discussing federal diversity jurisdiction, the delegates to the state 
ratification conventions agree that diversity jurisdiction was included in the 

federal judicial power as an antidote to geographic bias. Thus, the early view 

was that the rationale for diversity jurisdiction was to avoid geographic bias. 

3. Congress’s Concerns.—The legislative record also supports the views 
expressed at the state ratification conventions—diversity jurisdiction is based 

on the goal of remedying the ills of geographic bias. The Constitution does not 

itself create courts that could exercise diversity jurisdiction; instead, it grants 
such power to Congress.

117
 Congress, through the Act of September 24, 1789, 

created diversity jurisdiction and granted circuit courts original jurisdiction 

over: 

 
115. Remarks of Mr. William Grayson, Delegate to the Convention of the Commonwealth 

of Virginia, 2 DEBATES, supra note 75, at 415; see also, Remarks of James Madison, Member of 
the Federal Convention before the Convention of the Commonwealth of Virginia 3 DEBATES, 
supra note 75, at 566. 

116. Remarks of Mr. Davie, Delegate to the Convention of the State of North Carolina, 4 
DEBATES, supra note 75; Remarks of James Madison, a Member of the Federal Convention before 
the Convention of the Commonwealth of Virginia, 3 DEBATES, supra note 75, at 159. 

117. See U.S. CONST. art. III, §§ 1 & 2 (creating the federal judicial power which “shall be 
vested in one supreme Court, and in such inferior Courts as the Congress may from time to time 
ordain and establish” and providing that Congress could grant those courts jurisdiction over 
“Controversies . . . between Citizens of different States”). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            251 

 

 
 

all suits of a civil nature at common law or in equity, where the matter 

in dispute exceeds, exclusive of costs, the sum or value of five hundred 
dollars, and . . . the suit is between a citizen of the State where the suit 

is brought, and a citizen of another State.
118

   

The early legislative history of diversity jurisdiction provides no direct insight 

into its purpose. But, by the mid-nineteenth century, the legislature began to 
undertake action, and create a record, that demonstrated that diversity 

jurisdiction was intended to counter geographic bias. For example, in 1867, 

Congress modified diversity removal jurisdiction to include any situation where 
the litigant “has reason to and does believe that, from prejudice or local 

influence, he will not be able to obtain justice in such State court, may, at any 

time before the final hearing or trial of the suit.”
119

  

Changes in the late nineteenth century
120

 resulted in a greatly expanded 
scope for diversity jurisdiction and produced a troubling (to Congress) increase 

in the caseload of the federal courts.
121

 As a result, Congress, through the Act of 

March 3, 1887, restricted diversity jurisdiction
122

 including: raising the amount-
in-controversy requirement to $2,000;

123
 limiting the right to remove diversity 

 
118. Act of September 24, 1789, ch. 20, § 12, 1 Stat. 73, 78. 
119. Act of Mar. 2, 1867, ch. 196, 14 Stat. 558, 559. 
120. For example, the Act of March 3, 1875 expanded diversity jurisdiction to allow suits to 

be brought in federal court in states other than the state of the citizenship of the litigants. Act of 
March 3, 1875, Ch. 137, § 1, 18 Stat. 470, 470. This allowed a suit by a plaintiff form New York 
to be filed in New Jersey against a defendant from Pennsylvania. The 1875 Act also allowed either 
the plaintiff or defendant to remove to federal court where there would be diversity jurisdiction. 

See id. at § 2 (providing “[t]hat any suit of a civil nature, at law or in equity, now pending or 
hereafter brought in any State court where the matter in dispute exceeds . . . the sum or value of 
five hundred dollars . . . in which there shall be a controversy between citizens of different States 
. . . either party may remove said suit into the circuit court of the United States for the proper 
district”). For multi-party suits in state court, the Act also allowed any one of the plaintiffs or 
defendants to remove the entire suit to federal court providing they could meet the requirements 
of diversity jurisdiction. See id. at § 2 at 471 (providing that “when in any suit mentioned in this 
section there shall be a controversy which is wholly between citizens of different States, and which 

can be fully determined as between them, then either one or more of the plaintiffs or defendants 
actually interested in such controversy may remove said suit into the circuit court of the United 
State for the proper district”). 

121. For example, in raising the amount-in-controversy requirement, the legislature 
expressed its goal of decreasing the load on the federal courts. See 18 Cong. Rec. 610, 613-14 
(Jan. 13, 1887) (Remarks of Rep. Culberson) (noting both that the population of the United States 
had grown from 4 million in 1789 to 54 million in 1887 and that “[t]he amount of business of the 
country in the courts then and now sustain no comparison whatever.”). 

122. See Moore & Weckstein, supra note 90, at 8 (discussing history of the diversity clause). 
123. Act of March 3, 1887, Ch. 373, § 1, 24 Stat. 552, 552 (requiring that “the matter in 

dispute exceed[], exclusive of interest and costs, the sum or value of two thousand dollars . . . in 
which there shall be a controversy between citizens of different States”).  



                  INDIANA LAW REVIEW [Vol. 52:233 

 

252 

action to nonresident defendants;
124

 and restricting venue to the district where a 
defendant was an inhabitant (not where he might be found), with the exception 

that in diversity suits only, venue was proper in the district of the residence of 

the plaintiff or the defendant.
125

 Despite restricting access to diversity 
jurisdiction, Congress continued to allow removal from state courts when 

geographic bias would prevent the litigant from obtaining justice in the state 

court.
126

 
In 1948, Congress eliminated the requirement to show geographic bias in 

order to remove a diverse case to federal court.
127

 At the same time, Congress 

added a requirement that, regardless of diversity of citizenship, an action cannot 

be removed to federal court if the defendant is a citizen of the state in which the 
action was brought.

128
 This change supports the proposition that diversity 

jurisdiction is intended to protect out-of-state litigants against in-state bias 

because in-state defendants are not subject to geographic bias and, as such, 
should not be allowed to remove to federal court even if the action otherwise 

meets the requirements of diversity jurisdiction. 

In 1978, the Committee on the Judiciary submitted a report to the house of 

representatives in which it proposed eliminating diversity jurisdiction.
129

 The 
Committee contended “that the abolition of diversity jurisdiction is an important 

step in reducing endemic court congestion and its insidious effects on 

litigants.”
130

 The Committee also referenced the ongoing concern about 
geographic bias when it stated that in “the committee’s view . . . it is doubtful 

that prejudice against an individual because he is from another State is any 

longer a significant factor in this country’s State courts.”
131

 Similarly, when the 
Federal Courts Study Committee

132
 issued its report in 1990 it noted the ongoing 

concern with geographic bias “conced[ing] that [local bias in state courts] may 

be a problem in some jurisdictions, but we do not regard it as a compelling 

 
124. See Act of March 3, 1887, ch. 373, § 2, 24 Stat 553; Act of Aug. 13, 1888, ch. 866, § 2, 

25 Stat. 434.  
125. See Act of March 3, 1887, ch. 373, § 1, 24 Stat. 552; Act of Aug. 13, 1888, ch. 866, § 

1, 25 Stat. 433. 
126. See Act of March 3, 1887, ch. 373, § 2, 24 Stat 553 (enacting legislation allowing 

removal from state court in action where the parties are diverse “when it shall be made to appear 
to said circuit court that from prejudice or local influence he will not be able to obtain justice in 
such State court, or in any other State court to which the said defendent [sic] may, under the laws 

of the State, have the right, on account of such prejudice or local influence, to remove said cause”). 
127. See Act of June 25, 1948, ch. 646, 62 Stat. 869, 937-38 (providing the text of section 

1441 stating the types of actions removable); see Moore & Weckstein, supra note 90, at 10-11 
(discussing the 1948 Act). 

128. See Act of June 25, 1948, ch. 646, 62 Stat. 869, 938 (providing the text of section 
1441(b) which states “[a]ny other such action shall be removable only if none of the parties in 
interest properly joined and served as defendants is a citizen of the State in which such action is 
brought”). 

129. H.R. Rep. No. 95-893, at 1 (1978). 
130. Id at 2. 
131. See id. at 4 (expressing opinion as to need for diversity jurisdiction) (emphasis added). 
132. Federal Courts Study Act, Pub. L. No. 100-702, Title I, 102 Stat. 4644 (1988). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            253 

 

 
justification for retaining diversity jurisdiction.”

133
 

As this review of the legislative history of diversity jurisdiction shows, 

Congress and those appointed by Congress to study diversity jurisdiction 
understand diversity jurisdiction to be a remedy for the problem of geographic 

bias. Such a result is consistent both with our evidence supra from the state 

ratification conventions and infra from the U.S. Supreme Court. 

4. The U.S. Supreme Court Agrees.—Regardless of Congress’ or the 
Framers’ intent, starting with United States v. Deveau in 1809134 and continuing 

through 2021 in Texas v. California,
135

 the U.S. Supreme Court has made clear 

that the principal purpose of diversity jurisdiction is to prevent bias against out-
of-state litigants in state court.

136
 Such long-standing and consistent precedent 

strongly supports the view that avoiding geographic bias is the principal purpose 

of the Diversity Clause and the rationale for diversity jurisdiction. 

The 1809 opinion of the Court in Bank of U.S. v. Deveaux is the earliest 
U.S. Supreme Court opinion linking diversity jurisdiction with the purpose of 

creating an impartial court.
137

 The Bank of the United States brought suit in the 

Circuit Court for the District of Georgia to establish that the state of Georgia did 
not have the right to tax the bank.

138
 The Court held that the federal judiciary 

was created out of the concern that state courts might not treat persons from 

 
133. See FED. COURTS STUDY COMM., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 

40 (1990). 
134. See United States v. Deveaux, 9 U.S. 61, 87-88 (1809) (holding the purpose of diversity 

jurisdiction is to address fear of bias in the state court against out-of-state litigants). 
135. See Texas v. California, 141 S. Ct.. 1469 (2021) (mem.) (Alito, J., dissenting) 

(discussing diversity jurisdiction in the context of a hypothetical problem). 
136. A chronological list, from earliest to most recent, of such cases includes: United States 

v. Deveaux, 9 U.S. 61, 87-88 (1809) (Marshall, Ch. J.) (holding that diversity jurisdiction primary 
intent is to avoid in-state bias against out-of-state litigants); Pease v. Peck, 59 U.S. 595, 599 (1855) 
(Grier, J.) (same); Burgess v. Seligman, 107 U.S. 20, 34 (1883) (Bradley, J) (same); Barrow S.S. 
Co. v. Kane, 170 U.S. 100, 111 (1898) (Gray, J.) (same); Erie R.R. Co. v. Tompkins, 304 U.S. 
64, 74 (1938) (Brandeis, J.) (same); Guaranty Trust Co. of N.Y. v. York, 362 U.S. 99, 111 (1945) 
(Frankfurter, J.) (same); Nat. Mut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 622 
(1949) (Rutledge, J., concurring) (noting that diversity jurisdiction was “designed to nullify” local 
prejudice); McGautha v. California, 402 U.S. 183, 261 n.11 (1971) (Brennan, J., dissenting) 

(discussing diversity jurisdiction in the context of the Thibodaux and Mashuda opinions); Jerome 
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 n.6 (1995) (Souter, J.) 
(recognizing “concern with local bias” in the creation of diversity jurisdiction); Hertz Corp. v. 
Friend, 559 U.S. 77, 85 (2010) (Breyer, J.) (holding that the basic rationale of diversity jurisdiction 
to protect litigants “from local prejudice against out-of-state parties”); Home Depot U.S.A., Inc. 
v. Jackson, 139 S. Ct. 1743, 1746 (2019) (Thomas, J.); Texas v. California, 141 S. Ct. 1469 (2021) 
(mem.) (Alito, J., dissenting) (discussing diversity jurisdiction in the context of a hypothetical 
problem). 

137. See Bank of U.S. v. Deveaux, 9 U.S. 61, 68 (1809) (Marshal, C. J.) (discussing how the 
Court’s jurisdiction is limited to “to controversies between citizens of different states”). 

138. See Leo E. Strine, Jr. & Nicholas Walter, 91 NOTRE DAME L. REV. 877, 901-02 (2016) 
(discussing the U.S. Supreme Court decision in Bank of U.S. v. Deveaux). 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

254 

other jurisdictions impartially.
139

  
Forty-six years later, in 1855, in Pease v. Peck, where an action for debt had 

been objected to on the basis of the statute of limitations,
140

 the court restated its 

view that diversity jurisdiction was intended to provide an impartial forum for 
out-of-state litigants.

141
 In 1883, in Burgess v. Seligman, the Court, once again, 

expressed the view that avoidance of geographic bias lay at the heart of diversity 

jurisdiction.
142

 Here the Court was asked to overturn the decision of the federal 
circuit court based, in part, on Missouri Supreme Court opinions that had 

reached a conclusion adverse to the federal circuit courts but that had been 

decided after the federal circuit court decisions.
143

 In support of the federal 

court’s right to independent judgment, the Court noted that “the very object of 
giving the national courts jurisdiction to administer the laws of the States in 

controversies between citizens of different States was to institute independent 

tribunals which it might be supposed would be unaffected by local prejudices 
and sectional views[.]”

144
 In Barrow S.S. Co. v. Kane, the Court argued that the 

federal courts had a right to decide a case in which the forum state lacked any 

statute granting the state jurisdiction over the matter.
145

 In support of its 

argument that the federal courts had the right to hear such matters, the court 
noted that the “object” of the Diversity Clause was “to secure a tribunal 

presumed to be more impartial than a court of the State in which one of the 

litigants resides.”
146

 
The first twentieth-century case addressing avoidance of geographic bias as 

the rational for diversity jurisdiction is Erie Railroad Co. v. Tompkins.
147

 In 

Erie, the Court was asked to determine whether federal general law or the law 
of the Pennsylvania (the situs of the injury) should be applied in an action arising 

under tort law.
148

 In concluding that the law of Pennsylvania should be applied, 

the Court noted that conflicts had arisen between federal and local decisions 

resulting in “grave discrimination by non-citizens against citizens” through the 

 
139. See Deveaux, 9 U.S. at 87 (noting that regardless of whether state tribunals will be fair 

to all parties, the federal courts were created due to concern that they will not be fair).  
140. See Pease, 59 U.S. at 595 (providing the original cause of action). 
141. See id. at 599 (holding that “[t]he theory upon which jurisdiction is conferred on the 

courts of the United States, in controversies between citizens of different States, has its foundation 
in the supposition that, possibly the state tribunal might not be impartial between their own 
citizens and foreigners”). 

142. See Burgess v. Seligman, 107 U.S. 20, 32-33 (1883) (Bradley, J.). 
143. See id. 
144. See id. at 34. 
145. See Barrow S.S. Co. v. Kane, 170 U.S. 100, 105 (1898) (Gray, J.) (noting that the 

defendant steamship company, a foreign corporation, claimed that by engaging in business in New 

York it consented to being sued there “only as authorized by the statutes of the State”). 
146. See id. at 111. 
147. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74-75 (1938) (Brandeis, J.). 
148. See id. at 69-70.  



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            255 

 

 
strategic use of choice of venue.

149
 In support of its decision, the Court compared 

this result to the rationale for the grant of diversity jurisdiction: “to prevent 

apprehended discrimination in state courts against those not citizens of the 
State.”

150
  

Five years later, in Burford v. Sun Oil Co., the Court decline to grant federal 

jurisdiction over a matter when the issue “so clearly involves basic problems of 

Texas policy” and, as a result, “equitable discretion should be exercised to give 
the Texas courts the first opportunity to consider them.”

151
 In his dissent, Justice 

Frankfurter objected on the grounds that “the basic premise of federal 

jurisdiction based upon diversity of the parties’ citizenship is that the federal 
courts should afford remedies which are coextensive with rights created by state 

law and enforceable in state courts.”
152

 In arguing for this position, Justice 

Frankfurter noted that: 

 
It was believed that, consciously or otherwise, the courts of a state may 

favor their own citizens. Bias against outsiders may become embedded 

in a judgment of a state court and yet not be sufficiently apparent to be 
made the basis of a federal claim. To avoid possible discriminations of 

this sort, so the theory goes, a citizen of a state other than that in which 

he is suing or being sued ought to be able to go into a wholly impartial 
tribunal, namely, the federal court sitting in that state.

153
 

 

Justice Frankfurter then relied upon the view that diversity jurisdiction is a 

remedy to geographic bias when he argued that “[t]he Congressional premise of 
diversity jurisdiction is that the possibility of unfairness against outside litigants 

is to be avoided by providing the neutral forum of a federal court.”
154

 

Two years later, Guaranty Trust Co. of New York v. York clarified whether 
the rule of Erie v. Tompkins required the federal courts, sitting in diversity, to 

apply the state statute of limitations in deciding an action.
155

 In concluding that 

the statute of limitations was a substantive law such that the federal courts must 
apply it in deciding cases, the court relied on the basis for diversity 

jurisdiction—that it “is founded on assurance to non-resident litigants of courts 

free from susceptibility to potential local bias.”
156

  

 
149. See id. at 74-75 (noting that the rule in Swift v. Tyson “introduced grave discrimination 

by non-citizens against citizens. It made rights enjoyed under the unwritten ‘general law’ vary 
according to whether enforcement was sought in the state or in the federal court; and the privilege 
of selecting the court in which the right should be determined was conferred upon the non-
citizen.”). 

150. See id. at 74. 
151. Burford v. Sun Oil Co., 319 U.S. 315, 334 (1943) (Black, J.). 
152. Id. at 336-37 (Frankfurter, J., dissenting). 

153. Id. at 336. 
154. Id. at 345. 
155. Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 107-08 (1945) (Frankfurter, J.). 
156. Id. at 111. 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

256 

In Angel v. Bullington, the Court addressed the issue of whether a “judgment 
in the North Carolina [state] court precluded the right thereafter to recover on 

the same cause of action in the federal court.”
157

 In holding that the federal court 

should not grant jurisdiction, the Court reasoned that a federal court acting under 
diversity jurisdiction cannot provide a remedy withheld under state law because 

to do so would prejudice local citizens, and such prejudice runs counter to 

diversity jurisdiction’s purpose of preventing discrimination against 
outsiders.

158
 Two years later, the Court was required to address a circuit court 

decision, Woods v. Interstate Realty Co., that conflicted with the holding in 

Angel v. Bullington.
159

 In reversing that circuit court decision, the Court held 

that allowing federal courts—sitting in diversity—to hear matters that would be 
barred under state law “would create discriminations against citizens of the State 

in favor of those authorized to invoke the diversity jurisdiction of the federal 

courts. It was that element of discrimination that Erie Railroad Co. v. Tompkins 
was designed to eliminate.”

160
 

Justice Rutledge, concurring in National Mutual Insurance Co. of the 

District of Columbia v. Tidewater Transfer Co., which held that a plaintiff from 

the District of Columbia could commence an action in the federal court on the 
basis of diversity jurisdiction,

161
 acknowledged that there was a “scholarly 

dispute over the substantiality of those local prejudices which, when the 

Constitution was drafted, the grant of diversity jurisdiction was designed to 
nullify.”

162
 In another concurrence, here to Lumbermen’s Mutual Casualty Co. 

v. Elbert, Justice Frankfurter noted that the Constitutional “power of Congress 

to confer [diversity] jurisdiction was based on the desire of the Framers to assure 
out-of-state litigants courts free from susceptibility to potential local bias.”

163
 

Justice Brennan (joined by Justices Douglas and Marshall) dissented to 

McGautha v. California and, in discussing how the Court has historically 

addressed unconstitutionally overbroad statutes, noted that:
 164

 
 

[t]aken together . . . Thibodaux and Mashuda may stand for the 

proposition that the possibility of bias that stands at the foundation of 
federal diversity jurisdiction may nevertheless be discounted if that bias 

could be given effect only through a decision that will have inevitable 

 
157. Angel v. Bullington, 330 U.S. 183, 186 (1947) (Frankfurter, J.). 
158. Id. at 192. 
159. Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (Douglas, J.). 
160. Id. at 538. 
161. Nat’l Mut. Ins. Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582, 603-604 (1949) 

(Rutledge, J., concurring). 

162. Id. at 622. 
163. Lumbermen’s Mut. Cas. Co. v. Elbert, 348 U.S. 48, 54 (1954) (Frankfurter, J., 

concurring). 
164. McGautha v. California, 402 U.S. 183, 185-86 (1971) (Harlan, J.). 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            257 

 

 
repercussions on a matter of fundamental state policy.

165
 

In Iowa Mutual Insurance Co. v. LaPlante, the Court was asked to 

determine if the District Court had jurisdiction when the tribal court in a prior-
filed action had not ruled on its own jurisdiction.

166
 In arguing its position, Iowa 

Mutual claimed that the underlying policies of diversity jurisdiction—

incompetence and local bias—supported granting the federal courts 

jurisdiction.
167

 The Court rejected this argument while recognizing the role of 
avoiding bias as a basis for the grant of diversity jurisdiction by noting that “the 

Indian Civil Rights Act, 25 U.S.C. § 1302, provides non-Indians with various 

protections against unfair treatment in the tribal courts.”
168

 
The Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. 

addressed whether a tort action, arising from the Respondent driving piles into 

the riverbed above a freight tunnel, was within federal admiralty jurisdiction.
169

 

In discussing the Plaintiff’s argument, the Court notes, in dicta, that it is possible 
that the “first Congress saw a value in federal admiralty courts beyond fostering 

uniformity of substantive law, stemming, say, from a concern with local bias 

similar to the presupposition for diversity jurisdiction.”
170

 
Discussing the history of the Court’s precedent relating to a corporation 

being a citizen of the state in which it was incorporated, in Hertz Corp. v. Friend 

the Court noted that the rule adopted “was at odds with diversity jurisdiction's 
basic rationale, namely, opening the federal courts’ doors to those who might 

otherwise suffer from local prejudice against out-of-state parties.”
171

 And, in 

Home Depot U.S.A., Inc. v. Jackson, the Court notes, in discussing that federal 

courts are courts of limited jurisdiction, that the purpose of diversity jurisdiction 
is to “provide[] a neutral forum for parties from different States.”

172
  

Finally, in Texas v. California, Justice Alito dissented from the majority’s 

decision to deny the State of Texas’ motion to file a bill of complaint.
173

 In so 
arguing, he relied upon a hypothetical in which a judge refused to grant diversity 

jurisdiction because the judge determined that the concerns about providing a 

neutral forum for out-of-state parties were no longer relevant.
174

 Justice Alito 
noted that “[u]nlike the regional courts of appeals, the federal district courts, and 

the state courts, we are not tied to any region or State and were therefore 

 
165. Id. at 261 n.11 (Brennan, J., dissenting) 
166. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 11 (1987) (Marshall, J.). 
167. Id. at 18-19. 
168. Id. at 19.  
169. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 530 (1995) 

(Souter, J.). 
170. Id. at 546 n.6. 
171. Hertz Corp. v. Friend, 559 U.S. 77, 85 (Breyer J.) (emphasis added). 

172. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (Thomas, J) (internal 
quotation marks omitted). 

173. Texas v. California, 141 S. Ct. 1469 (Mem) (Alito, J., dissenting) (2021).  
174. Id. at 1469.  



                  INDIANA LAW REVIEW [Vol. 52:233 

 

258 

entrusted with the responsibility of adjudicating cases where the suspicion of 
local bias may run high.”

175
 

As these seventeen U.S. Supreme Court opinions make clear, diversity 

jurisdiction is, at its core, based on the fear of geographic bias and the desire to 
avoid it by providing a neutral forum for out-of-state litigants. 

5. Geographic Bias Is the Rationale for Diversity Jurisdiction.—Diversity 

jurisdiction has been construed in the state ratification conventions, in its 
legislative history, and in the Supreme Court as being based on a desire to 

mitigate the effects of geographic bias. Legal scholars also agree that countering 

geographic bias is the rationale for diversity jurisdiction.
176

 Having thus 

established geographic bias as the rationale for diversity jurisdiction, we now 
turn to demonstrating that geographic bias is not an issue in the state courts, and 

that diversity jurisdiction is no longer justified by its rationale. 

 
III. THE HISTORICAL EMPIRICAL EVIDENCE: SURVEYS OF ATTORNEYS 

 

As we have seen, the state ratification conventions, Congress, the Supreme 

Court, and legal scholars agree that geographic bias is the rationale for federal 
diversity jurisdiction. The question this Article seeks to answer is whether that 

rationale is valid in today’s America. As we show in Part IV, our empirical study 

finds that it is not. Before reporting on the results of our empirical study, it will 

 
175. Id. at 1472. 
176. In the absence of a record from the Framers, scholars have proposed several theories 

supporting diversity jurisdiction. See, e.g., Debra Lyn Bassett, The Hidden Bias in Diversity 
Jurisdiction, 81 WASH. U. L. Q. 119, 123-24 (2003) (“Two major theories occupy the consensus 
positions as to the historical purpose of diversity jurisdiction. . . . [one is ] to protect out -of-state 
litigants from bias by state courts . . . [the other] is that state legislatures, rather than state courts, 
were biased at against commercial interests”); Stone Grissom, Diversity Jurisdiction: An Open 

Dialogue in Dual Sovereignty, 24 HAMLINE L. REV. 372, 374 (2001) (“There are two conventional 
and somewhat competing theories concerning the initial justifications for diversity jurisdiction”). 
One theory is that diversity jurisdiction is meant to counter prejudice and bias against out-of-state 
residents in state court. See, e.g., Bassett, supra note 176, at 119-20 (“The traditional, most 
common explanation of diversity jurisdiction’s purpose is the protection of out-of-state litigants 
from local bias by state courts”). Another theory is that diversity jurisdiction arises out of a 
“perceived hostility by the state courts and legislatures toward commercial interests.” See, e.g., 
Patrick J. Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a 

Brave New World for Erie and Klaxon, 72 TEXAS L. REV. 79, 81 (1993) (noting that “the drafting 
and ratification history supports the conclusion that diversity was intended at least in part as a 
protection against aberrational state laws, particularly those regarding commercial transactions”); 
Justice Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483, 
497-98 (1928) (noting that while “there was little cause to fear state tribunals would be hostile to 
litigants from other states,” the “commercial interests of the country were reluctant to expose 
themselves to the hazards of litigation before [state] courts”). A third is that diversity jurisdiction 
was part of “the Framers’ . . . desire to circumvent state court juries rather than state judges or 

legislatures.” See Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical 
Origins of Diversity Jurisdiction, 82 N.Y.U.L. REV. 997, 1004 (2007) (emphasis added). 
Regardless of the theory, they all agree that diversity jurisdiction is intended to limit the effects 
of geographic bias. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            259 

 

 
be useful to examine previously completed empirical studies of geographic 

bias.
177

  

All the empirical studies found by the Author date from between 30 and 60 
years ago. And all but one of the surveys support the conclusion that attorneys 

believed, during that time, that geographic bias was a relevant factor in deciding 

whether to file in, or remove to, federal court. For example, in 1962, Summers 

surveyed eighty-two attorneys in the Eastern and Western Districts of 
Wisconsin.

178
 Summers concluded that geographic bias was relevant to 

decisions about where to file but that it was not a leading factor (it was tenth out 

of fourteen factors).
179

 The relatively low importance of geographic bias found 
in Summers’ survey is countered by a survey taken at the same time, described 

in the Virginia Law Review, of 1,100 practicing attorneys in Virginia where 

geographic bias was found to be the second and third most-cited reasons for 

filing in federal court.
180

  
The problem of not being able to pin down the importance of concerns about 

geographic bias also arose in later surveys. For example, Goldman and Marks 

surveyed “405 attorneys . . . from the metropolitan Chicago area,”
181

 and found 
that, while “local bias” was cited as a reason among those attorneys filing in 

federal court 40% of the time, the relative importance of the factor was not 

captured due to the survey design.
182

 Goldman and Marks also found that for 
attorneys filing in state court, “local bias” was a reason to file in federal court 

fifty-three percent of the time.
183

 Unfortunately, that result was of no statistical 

value because of a low response rate (only nineteen out of 205 attorneys 

responded to the survey).
 184

   
While Goldman and Marks at least found some evidence that attorneys were 

concerned about geographic bias, Perlstein, in 1981, using survey data of 

 
177. A mature legal science benefits from the insight provided by well-designed empirical 

studies of legal phenomena. Kathryn Zeiler, The Future of Empirical Legal Scholarship: Where 
Might We Go from Here?, 66 J. LEGAL EDUC. 78, 80 (2016) (noting that empirical studies 
“contribute[] both to the development of a mature legal science, which aids in our endeavor to 
accurately describe and explain what we observe, and to informed policymaking”) (internal 
quotation marks omitted). 

178. Marvin R. Summers, Analysis of Factors That Influence Choice of Forum in Diversity 

Cases, 47 IOWA L. REV. 933, 936-37 (1962) (discussing empirical study methodology). 
179. Id. at 937-38. 
180. The Choice between State and Federal Court in Diversity Cases in Virginia, 51 VA. L. 

REV. 178, 178-79 & Table I (1965) (finding the second most cited reason for preferring federal 
court as a plaintiff was local prejudice against an out-of-state plaintiff and the third most cited 
reason for preferring state court as a plaintiff was local prejudice against an out-of-state 
defendant).  

181. Jerry Goldman & Kenneth S. Marks, Diversity Jurisdiction and Local Bias: A 

Preliminary Empirical Inquiry, 9 J.L. STUD. 93, 95 (1980). 
182. Id. at 97-99. 
183. Id. at 100. 
184. Id. at 101. 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

260 

attorneys’ responses to hypothetical cases,
185

 found no statistically significant 
evidence that attorneys believe state courts are biased against out-of-state 

litigants.
186

 

Later surveys expanded the geographic reach of the regions surveyed and, 
as a result, helped clarify the scope and meaning of geographic bias. Bumiller, 

for example, surveyed “a random sample of attorneys . . . from diversity cases 

in four federal courts” and “a sample of attorneys [drawn from] corresponding 
state courts.”

187
 While there was evidence for the existence of geographic bias 

in her survey,
188

 she concluded that the “bias influencing attorneys’ decisions, 

unlike the original justification for diversity jurisdiction, is apparently neither 

regional bias nor particular hostility due to ‘state’ residence, but fear of 
favoritism to local interests.”

189
 In analyzing these results, Bumiller contends 

that a difference in the importance of geographic bias may be more prevalent in 

a rural setting than an urban setting because in the rural setting “fear of 
favoritism to local interests” is a larger problem.

190
 

Miller used a greatly expanded geographic region in his survey by sampling 

attorneys who were “randomly selected from all removal cases filed in federal 

district courts during FY 1987.”
191

 He found geographic bias
192

 but also that the 
prevalence of geographic bias against out-of-state defendants was regional and 

against anyone from outside the local area.
193

  

In 1991, Flango surveyed attorneys from “the Eastern District of Texas, the 
Southern District of West Virginia, and the Northern District of Ohio.”

194
 He 

found that “[t]he most important items to all attorneys when considering choice 

of law forum are the overall competence of the judiciary and the non-residence 
status of the clients.”

195
 Seventy-one percent of the attorneys in the federal 

sample and sixty-three percent of the attorneys in the state sample considered 

non-resident status of their client to be a significant factor in choice of forum.
196

 

Overall, these surveys support the conclusion that from the 1960s to the 
beginning of the 1990s, attorneys considered geographic bias as a factor in in 

 
185. Jolanta Juszkiewicz Perlstein, Lawyers' Strategies and Diversity Jurisdiction, 3 L. & 

POL’Y Q. 321, 324 (1981). 
186. Id. at 327.  
187. See Kristin Bumiller, Choice of Forum in Diversity Cases: Analysis of a Survey and 

Implications for Reform, 15 L. & SOC’Y REV. 749, 753 (1980).  

188. Id. at 760. 
189. Id. at 761. 
190. Id. at 760-761. 
191. Neal Miller, An Empirical Study of Forum Choices in Removal Cases under Diversity 

and Federal Question Jurisdiction, 41 AM. U. L. REV. 369, 393 (1992) (describing the design of 
the study). 

192. Id. at 408-10 (discussing results of study). 
193. Id. at 410-11. 

194. Victor E. Flango, Attorneys' Perspectives on Choice of Forum in Diversity Cases, 25 
AKRON L. REV. 41, 46 (1991).  

195. Id. at 54. 
196. Id. at 56. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            261 

 

 
choosing to file in federal or state court. We now turn to whether geographic 

bias remains a factor in forum choice. 

 
IV. THE STUDY: EMPIRICAL EVIDENCE ELIMINATING THE RATIONALE 

 

There are two central problems with the surveys discussed in Part III. First, 

they represent the views of attorneys from between thirty and sixty years ago 
and, therefore, do not represent the current state of affairs.

197
 In addition, they 

were efforts to measure what factors attorneys believed they had previously used 

in choosing to file a diversity-eligible action in federal or state court.
198

 As we 
know, there are many reasons that people can misreport why they chose a certain 

action in the past.
199

 As such, the survey data provides only indirect, and 

potentially inaccurate, evidence from outside the current period as to whether 

geographic bias is a factor in forum choice. To avoid these problems, our study 
directly measures the underlying phenomena (filing and removal rates in the 

federal courts and a litigant’s out-of-state status) to determine whether 

geographic bias is a factor in forum choice using data from over one million 
cases across the last thirty years.

200
 Based on this analysis, we conclude that 

geographic bias is not currently an issue in diversity jurisdiction.  

This Part proceeds in two steps. In Part IV Section A, we explain what data 
was used in the study. In Part IV Section B, we demonstrate that geographic bias 

is not a factor in forum choice in diversity actions in two ways. First, we 

establish that a litigant’s out-of-state or in-state status has no statistically 

significant effect on filing or removal rates. This, by itself, establishes that 
geographic bias is not a factor in forum choice. Second, we engage in a thought 

experiment and assume, contrary to the facts, that the out-of-state or in-state 

status of litigants is a factor in forum choice. We then demonstrate that even if 
geographic bias were a factor in forum choice it would be a de minimis 

(irrelevant) factor. This result further supports the conclusion that geographic 

bias is not a factor in choosing to file in, or remove to, federal court. 

  

 
197. The earliest study was published in 1962. Summers, supra note 178. The most recent 

study related to “diversity cases filed in the statistical year ending June 30, 1990.” Flango, supra 

note 194, at 47.  
198. One survey looked at prospective cases using hypotheticals, but the logic remains. See 

Perlstein, supra note 185, at 324 (describing Perlstein’s study using hypotheticals). 
199. For example, surveys may be biased when the respondents “are concerned about how” 

their responses “would reflect on how they are viewed.” ROBERT M. GROVES ET AL., SURVEY 
METHODOLOGY 52 (2004) (describing how respondents’ reactions to questions about drug use 
may differ from the true answer). In our case, some attorneys may wish to appear more strategic 
than they are and therefore falsely claim consideration of geographic bias in their analysis of 

venue. In addition, because surveys are asking respondents to remember, we must take into 
account the failings of memory. See id. at 213-18 (discussing the need to recall information in 
answering questions from a survey and potential issues as to memory.). 

200. See infra text accompanying notes 201-207 (discussing the data used in our study).  



                  INDIANA LAW REVIEW [Vol. 52:233 

 

262 

A. One Million Records of Filings and Removals from 1990 to 2019 
 

The Federal Judicial Center (“FJC”) publishes data on federal filings and 

removals through the Administrative Office of the U.S. Courts’ Integrated Data 
Base.

201
 This database comprises 9.3 million records corresponding to “civil 

case and criminal defendant filings and terminations in the district courts, along 

with bankruptcy court and appellate court case information” spanning the years 
1901 to 2021.

202
 For purposes of this study, we used this database

203
 to create a 

dataset relating to federal civil actions (filings and removals) arising under 

diversity jurisdiction from 1990 to 2019.
204

 Records relating to class actions and 

to actions that had county-code designations that did not match those in the U.S. 
Census data were removed from our dataset. This produced a dataset containing 

1,059,564 records corresponding to 574,083 filings and 485,481 removals. 

The data from the FJC database does not incorporate demographic 
information about a litigant (e.g., race, poverty status, or whether the individual 

lives in a rural or urban area).
205

 As this demographic data is necessary to have 

an accurate model of filing and removal rates, we were required to find a source 

for that information. Relevant demographic information is available from the 

 
201. See FEDERAL JUDICIAL CENTER, Integrated Database (IDB), https://www.fjc.gov/ 

research/idb (last visited 12/7/2021) [perma.cc/M73F-EXJ6]. 
202. Id. While the dataset contains records with filing dates as early as 1901, given the small 

number of such files, and this Article’s interest in the present importance of geographic bias in 
diversity jurisdiction, records from cases filed prior to 1990 are ignored. 

203. The layout and meaning of the data are described in two Codebooks. One codebook 
covers data from 1970 to 1987. FEDERAL JUDICIAL CENTER, INTEGRATED DATA BASE CIVIL 
CODEBOOK (Aug. 26, 1988), available at https://www.fjc.gov/sites/default/files/idb/codebooks/ 
Civil%20Codebook%201970-1987.pdf [perma.cc/29YV-6TW7] [hereinafter “CODEBOOK 1970-
87”]. The other codebook covers data from 1988 forward. FEDERAL JUDICIAL CENTER, 
INTEGRATED DATA BASE CIVIL CODEBOOK (Aug. 26, 1988), available at https://www.fjc.gov/ 

sites/default/files/idb/codebooks/Civil%20Codebook%201988%20Forward.pdf [perma.cc/J6GG 
-TMWG] [hereinafter “CODEBOOK 1988-2020”]. To limit the cases to only original proceedings, 
we must limit to just those cases whose “ORIGIN” field is set to 1. See, e.g., CODEBOOK 1988-
2020, supra note 203, at 2-3 (explaining the meaning of the “ORIGIN” field).  

204. In response to the rise in the infection and hospitalization rate for COVID-19, U.S. 
District Courts undertook several actions that could have affected filing and removal rates in 
unexpected and unknown ways. For example, On March 23, 2020, the United States District Court 
for the Northern District of Florida filed an administrative order that required “[i]n-person 

hearings, when possible, [to be] converted to telephonic or video conference hearings” and closed 
all Court locations to the public “except for those individuals who are required to attend in-person 
hearings, trials, or other necessary matters before the Court.” See In re: Court Operations Under 
the Exigent Circumstances Created by Covid-19, Administrative Order No. 4:95mc40111, N.D. 
Fla. 2-3 (Mar. 23, 2020). In addition, starting in mid-October 2020, a number of U.S. District 
Courts suspended jury trials and grand jury proceedings. See Courts Suspending Jury Trials as 
Covid-19 Cases Surge, U.S. CTS., (Nov. 20, 2020), https://www.uscourts.gov/news/2020/11/20/ 
courts-suspending-jury-trials-covid-19-cases-surge [perma.cc/4B6R-AG7R] (discussing U.S. 

district court responses to Covid-19). Because these changes may affect filing and removal rates 
in unique and unknown ways, we limit our analysis to data from before 2020.  

205. See generally CODEBOOK 1970-87, supra note 203; CODEBOOK 1988-2020, supra note 
203. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            263 

 

 
U.S. Census Bureau and the National Center for Health Statistics but only at the 

level of the county and year.
206

 As a result, in order to use the demographic data, 

it was necessary to aggregate the dataset from the FJC by county and year to 
make it conform to the demographic data. This produced a dataset with 94,299 

entries relating to filings in federal court and 94,294 entries relating to removals 

from federal court. Each entry in this dataset contained a count of filings or 

removals in a given county and year. Data from the U.S. Census and National 
Center for Health Statistics was then used to add information as to the county’s 

total population, percentage of population by race and ethnicity, poverty-rate, 

and rural-urban status in a given year. Finally, the counts of filings and removals 
were modified, respectively, to be filing rates per 1,000 people and removal 

rates per 1,000 people in a given year and county.
207

 

 

B. Geographic Bias Is Dead 
 

Our empirical analysis is broken into three steps. In the first step, we explain 

the three models we use to measure the effect of geographic bias on filing and 
removal rates. In step two, we use regression analysis of these models to show 

that geographic bias is not a statistically significant factor for filing or removal 

rates. Finally, we assume what we know to be false—that geographic bias is a 
relevant factor—to measure how important a factor geographic bias could be 

relative to other factors in the model. As discussed infra, this part of the analysis 

shows that even if geographic bias were a statistically significant factor, it is a 

de minimis factor in the decision as to where to file in or to remove to federal 
court. From these results, we may confidently conclude that geographic bias is 

no longer a significant factor in forum choice in diversity actions. 

1. Three Models of Forum Choice.—In order to measure the statistical 
significance

208
 of geographic bias we must have a model that represents the 

 
206. See, e.g., U.S. CENSUS BUREAU, COUNTY INTERCENSAL TABLES 1980-1990, https:// 

www.census.gov/data/tables/time-series/demo/popest/1980s-county.html [perma.cc/ 5CTB-
MEHV] (follow “1980-1989” hyperlink to download the excel file for U.S. population by race 
from 1980 to 1989); CENTERS FOR DISEASE CONTROL AND PREVENTION, NATIONAL CENTER FOR 
HEALTH STATISTICS, NCHS URB.-RURAL CLASSIFICATION SCHEME FOR CNTYS., 
NCHSurbruralcodes.xls, https://www.cdc.gov/nchs/data/data_acces_files/NCHSURCodes2013. 
xlsx [perma.cc/9DP4-YF83]. 

207. As a county’s population grows, that growth itself can increase the number of filings 
and removals. Similarly, as the county’s population declines, that decline itself can decrease the 

number of filings and removals. As a result, a model based solely on counts of filings or removals 
might attribute causal effects to variables that are due to changes in the size of the county’s 
population. To avoid this type of misleading result, we use a stable and consistent measure: count 
per 1,000 people in a county. In particular, we convert number of filings to filings per 1,000 people 
in a county in a year and removals to removals per 1,000 people in a county in a year.  

208. Statistical significance is a measure of how likely a result from a regression analysis is 
due to chance. It is often represented by a “p-value.” A p-value of 0.05 means that the result found 
will be due to chance 5% of time. DAVID HENSHER, JOHN M. ROSE, & WILLIAM H. GREENE, 

 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

264 

relationship between a litigant’s out-of-state status and federal court filing and 
removal rates. The core of our model arises from the following hypotheses: 

 

H1: If geographic bias is a factor in forum choice, then in-state 
plaintiffs should prefer to file in state court to take advantage of 

state court bias against out-of-state defendants. 

H2: If geographic bias is a factor in forum choice, then out-of-state 
plaintiffs should prefer to file in federal court to avoid state 

court bias against out-of-state plaintiffs. 

H3: If geographic bias is a factor in forum choice, then out-of-state 

defendants will prefer to remove from state court to federal 
court in order to avoid state court bias against out-of-state 

defendants. 

If true, these three hypotheses entail that if geographic bias exists in diversity 
actions, we should find the following in the empirical record of federal court 

filings and removals: 

 

E1: As the proportion of out-of-state defendants rise in a 
population, the federal court filing rate should decline because 

in-state plaintiffs will preferentially file in state court and avoid 

filing in federal court. 

E2: As the proportion of out-of-state plaintiffs rise in a population, 

the federal court filing rate should increase because out-of-state 

plaintiffs will preferentially file in federal court and avoid filing 

in state court. 

E3: As the proportion of out-of-state defendants rise in a 

population, the federal removal rate should increase because 

out-of-state defendants will preferentially remove to federal 

court to avoid litigating in state court. 

Based on these hypotheses and expected effects our model must, at its core, 

examine the effect changes to the proportion of out-of-state defendants or out-
of-state plaintiffs have on filing or removal rates. This would produce the 

 
APPLIED CHOICE ANALYSIS: A PRIMER 46-47 (2005). Often studies will rely upon a p-value of 0.05 
as the cut-off for statistical significance. See, e.g., id; SCOTT E. MAXWELL & HAROLD D. DELANY, 
DESIGNING EXPERIMENTS AND ANALYZING DATA: A MODEL COMPARISON PERSPECTIVE 47 (2nd 

ed. 2004) (noting that a p-value of 0.05 is consistent with general practice). Because our study 
covers thirty years of data, using a p-value of 0.05 would mean that it would be likely that between 
1 and 2 statistically significant results would be due to chance. To avoid that result, we use a p-
value of 0.01 which corresponds to a 1% (1 in 100) probability that the results are due to chance.  



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            265 

 

 
following models: 

 
𝐹𝑖𝑙𝑖𝑛𝑔𝑅𝑎𝑡𝑒𝑐,𝑡 = 𝛽0 + 𝛽1 𝑂𝑂𝑆_𝐷𝑒𝑓𝑐,𝑡 +  𝜇𝑐,𝑡  Model N1

209
 

   

𝐹𝑖𝑙𝑖𝑛𝑔𝑅𝑎𝑡𝑒𝑐,𝑡 = 𝛽0 + 𝛽1 𝑂𝑂𝑆_𝑃𝑙𝑡𝑓𝑐,𝑡 +  𝜇𝑐,𝑡    Model N2
210

 

   

𝑅𝑒𝑚𝑜𝑣𝑎𝑙𝑅𝑎𝑡𝑒𝑐,𝑡 = 𝛽0 + 𝛽1 𝑂𝑂𝑆_𝐷𝑒𝑓𝑐,𝑡 +  𝜇𝑐,𝑡    Model N3
211

 

   

Based on the Author’s prior research
212

 and the results of the Bumiller’s 

survey,
213

 we know these models are too simple (naïve) to accurately account 
for filing rates. To make the models more accurate, we must add independent 

variables that measure race, ethnicity, poverty-rate, and population density (the 

urban or rural status) by county and year. In addition, we will need to add a 
series of dummy variables representing U.S. jurisdictions to account for 

unknown state-level effects.
214

 This produces the following models (which will 

be used in our analysis):  

  

 
209. FilingRatec,t is the dependent variable and represents the filing rate, per 1,000 people, 

in county c and year t; OOS_Defc,t is the percent of filings and removals, respectively, with out-
of-state defendants in county c and year t; β0 is the x-intercept, and β1 is the correlation coefficient 

for OOS_Defc,t. 
210. OOS_Pltfc,t is the percent of filings and removals, respectively, with out-of-state 

plaintiffs. All other variables remain the same as in Model B1.  
211. RemovalRatec,t is the dependent variable and represents the removal rate, per 1,000 

people, in county c and year t. All other variables remain the same as in Model B1.  
212. From the Author’s work, we know that factors like race, ethnicity, and poverty-rate are 

relevant to filing rates. See Scott DeVito, Of Bias and Exclusion: An Empirical Study of Diversity 
Jurisdiction, Its Amount-in-Controversy Requirement, and Black Alienation from U.S. Civil 

Courts, 13 GEO. J. L. & MOD. CRITICAL RACE PERSP. 1, 25 (2021) (finding that “as the percentage 
of Black people in a community rise, the filing rate declines. . . . [and that] as the percentage of 
White people in a community rise, the filing rate increases.”); id at 29 (finding that “[t]he greater 
the poverty-rate, the greater the filings in federal court.”).  

213. From the work of Bumiller, we know that measures of population density (whether a 
county is rural or urban) affect results relating to geographic bias. See Bumiller, supra note 187, 
at 760-61.  

214. Ideally, when comparing data from two different populations, we would like the 

statistical properties of the populations to be the same for each population. When this occurs, we 
have homogeneity. We have heterogeneity where there may be unobserved relevant variables that 
are correlated with the observed variables and the value of those variables may differ from subject 
to subject. See DAMODAR GUJARATI, ECONOMETRICS BY EXAMPLE 282 (2011). One way of 
limiting the effects of heterogeneity is to create a regression formula that contains a set of dummy 
variables to capture the heterogeneity. See Andrew W. Jurs & Scott DeVito, A Tale of Two 
Dauberts: Discriminatory Effects of Scientific Reliability Screening, 79 OHIO ST. L.J. 1107, 1132 
(2018) (noting “use of dummy variables to minimize the potential for heterogeneity . . . 

produc[ing] misleading results”); GUJARATI, supra note 214, at 283 (explaining dummy variables 
in the context of fixed effects analysis). Dummy variables are variables that have a value of 1 if a 
condition is met and a value of 0 otherwise. Id. at 47. In our case, to capture state-level 
heterogeneity, we create one dummy variable for each state.   



                  INDIANA LAW REVIEW [Vol. 52:233 

 

266 

𝐹𝑖𝑙𝑖𝑛𝑔𝑅𝑎𝑡𝑒𝑐,𝑡 = 𝛽0 + 𝛽1 𝑂𝑂𝑆_𝐷𝑒𝑓𝑐,𝑡 +  𝛽2%𝑊ℎ𝑖𝑡𝑒𝑐,𝑡  +
 𝛽3 %𝐻𝑖𝑠𝑝𝑎𝑛𝑖𝑐𝐿𝑎𝑡𝑖𝑛𝑥𝑐,𝑡  +  𝛽4 %𝑃𝑜𝑣𝑒𝑟𝑡𝑦𝑅𝑎𝑡𝑒𝑐,𝑡  +
 𝛽5 𝑅𝑢𝑟𝑎𝑙𝑐,𝑡  +  𝜂1 𝑆𝑡𝑎𝑡𝑒1  +  𝜂2 𝑆𝑡𝑎𝑡𝑒2  + . . . + 𝜂50 𝑆𝑡𝑎𝑡𝑒50  +
 𝜇𝑐,𝑡  

Model 
M1215 

   

𝐹𝑖𝑙𝑖𝑛𝑔𝑅𝑎𝑡𝑒𝑐,𝑡 = 𝛽0 + 𝛽1 𝑂𝑂𝑆_𝑃𝑙𝑡𝑓𝑐,𝑡 +  +  𝛽2%𝑊ℎ𝑖𝑡𝑒𝑐,𝑡  +
 𝛽3 %𝐻𝑖𝑠𝑝𝑎𝑛𝑖𝑐𝐿𝑎𝑡𝑖𝑛𝑥𝑐,𝑡  +  𝛽4 %𝑃𝑜𝑣𝑒𝑟𝑡𝑦𝑅𝑎𝑡𝑒𝑐,𝑡  +
 𝛽5 𝑅𝑢𝑟𝑎𝑙𝑐,𝑡  +  𝜂1 𝑆𝑡𝑎𝑡𝑒1  +  𝜂2 𝑆𝑡𝑎𝑡𝑒2  + . . . + 𝜂50 𝑆𝑡𝑎𝑡𝑒50  +
 𝜇𝑐,𝑡    

Model 
M2216 

   

𝑅𝑒𝑚𝑜𝑣𝑎𝑙𝑅𝑎𝑡𝑒𝑐,𝑡
= 

 𝛽0 + 𝛽1𝑂𝑂𝑆_𝐷𝑒𝑓𝑐,𝑡 +  𝛽2 %𝑊ℎ𝑖𝑡𝑒𝑐,𝑡  +
 𝛽3 %𝐻𝑖𝑠𝑝𝑎𝑛𝑖𝑐𝐿𝑎𝑡𝑖𝑛𝑥𝑐,𝑡  +  𝛽4 %𝑃𝑜𝑣𝑒𝑟𝑡𝑦𝑅𝑎𝑡𝑒𝑐,𝑡  +
 𝛽5 𝑅𝑢𝑟𝑎𝑙𝑐,𝑡  +  𝜂1 𝑆𝑡𝑎𝑡𝑒1  +  𝜂2 𝑆𝑡𝑎𝑡𝑒2  + . . . + 𝜂50 𝑆𝑡𝑎𝑡𝑒50  +
 𝜇𝑐,𝑡  

Model 
M3217 

   

2. No One Cares About Geographic Bias.—With these models in hand, we 

may begin to analyze whether geographic bias is a statistically significant factor 

for filing or removal rates. In this analysis, we first look at the statistical 
significance of geographic bias for filings and then for removals. In addition, 

because we believe that the effects of geographic bias might be different for 

artificial persons (corporations, partnerships, etc.) than for natural persons, we 
performed separate analyses for natural and artificial persons. The results of 

these various sub-analyses are all consistent with each other—geographic bias 

is of little statistical significance as a factor in forum choice and, as a result, we 
may conclude that diversity jurisdiction is no longer supported by its rationale. 

We began with an analysis of the dataset containing just natural persons. 

Performing a regression analysis for each year in the dataset, using model M1 

(correlation between filing rates and out-of-state defendants), we found a 
statistically significant correlation between filing rate and the proportion of out-

of-state defendants just once in thirty years—while other factors like race, 

ethnicity, poverty rate, and rural or urban status are much more frequently 
statistically significant (see Table 1). 

  

 
215. FilingRatec,t is the dependent variable and represents the filing rate, per 1,000 people, 

in county c and year t; OOS_Defc,t is the percent of filings with out-of-state defendants in county 
c and year t; β0 is the x-intercept; β1 is the correlation coefficient for OOS_Defc,t; %White, 
%HispanicLatinx, and %PovertyRate, respectively, stand for precent of a county that is White, 
Hispanic or Latinx, or in poverty; Rural is a binary variable where a 0 means the county is urban 
while a 1 means the county is rural; the related β’s for each of these variables are their correlation 
coefficients; Statei is a binary variable that is 1 if the county is in that state and 0 otherwise; and 

the 𝜂𝑖 ’s are the correlation coefficients for the State variables.  
216. OOS_Pltfc,t is the percent of filings with out-of-state plaintiffs. All other variables 

remain the same as in Model M1.  
217. RemovalRatec,t is the dependent variable and represents the removal rate, per 1,000 

people, in county c and year t; OOS_Defc,t is the percent of removals with out-of-state defendants 
in county c and year t. All other variables remain the same as in Model M1. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            267 

 

 
Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Defendant 1 out of 30 

Race 9 out of 30 

Hispanic 10 out of 30 

Poverty Rate 13 out of 30 

Rural/Urban 29 out of 30 

Table 1: Regression analysis on filing rates data set containing just natural persons using Model 
M1 (by Author). 

 

On its face, this demonstrates that the out-of-state status of the defendant, where 

the litigants are natural persons, is not a factor in where plaintiffs choose to file 

their cases. This provides direct and clear evidence that geographic bias is no 
longer a factor in forum choice.  

If we perform a regression analysis using model M2 (correlation between 

filing rates and out-of-state plaintiffs), we find geographic bias to be a 
statistically significant factor in just 3 out of 30 years with other factors having 

considerably higher rates of significance (see Table 2). 

 
Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Plaintiff 3 out of 30 

Race 7 out of 30 

Hispanic 10 out of 30 

Poverty Rate 13 out of 30 

Rural/Urban 29 out of 30 

Table 2: Regression analysis on filing rates data set containing just natural persons using Model 
M2 (by Author). 

 
While this result is less striking than our previous result, finding geographic bias 

to be statistically significant in 1 of every 10 years where the parties are natural 

persons and the plaintiff is from out-of-state strongly reinforces our conclusion 
that geographic bias is not a concern for those filing in federal court.  

If we change datasets to one that only contains artificial persons, we find 

very similar results. For example, using model M1, we once again find the 

proportion of out-of-state defendants in a county is only a statistically significant 
factor for filing rates in 1 out of 30 years (see Table 3). 

  



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268 

Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Defendant 1 out of 30 

Race 1 out of 30 

Hispanic 4 out of 30 

Poverty Rate 6 out of 30 

Rural/Urban 1 out of 30 

Table 3: Regression analysis on filing rates data set containing just artificial persons using Model 
M1 (by Author). 

 
And for artificial persons who are out-of-state plaintiffs, a plaintiff’s out-of-state 

status matters just twice in 30 years (see Table 4). 

 
Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Plaintiff 2 out of 30 

Race 1 out of 30 

Hispanic 4 out of 30 

Poverty Rate 5 out of 30 

Rural/Urban 28 out of 30 

Table 4: Regression analysis on filing rates data set containing just artificial persons using Model 
M2 (by Author). 

 
Interestingly, the race, ethnicity, and poverty rate factors in the artificial person 

dataset are much less frequently statistically significant factors in whether to file 

in federal court than in the case of natural persons. While it is premature to draw 
conclusions, the Author wonders whether the differences between the natural 

person and artificial person results provide support for the conclusion that there 

is ongoing bias against natural litigants of a specific race, ethnicity, or economic 

status. Unfortunately, given the complexity of an analysis of this issue, the 
Author may only speculate at this time.  

In the previous models we examined geographic bias in the context of filing 

rates. We now shift to removal rates and find that geographic bias is also not a 
statistically significant factor in an out-of-state defendant’s decision to remove 

to federal court. When we limit our dataset to just natural persons and examine 

the relationship between being an out-of-state defendant and removal rates,
218

 

 
218. Our model for removal rates is identical to that of M2 except that the dependent variable 

is removal rate per 1,000 people in the county not filing rate per 1,000 people. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            269 

 

 
we see that the defendant’s out-of-state status is never a statistically significant 

factor for removal rates—but it is for our other factors (see Table 5). 

 
Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Defendant 0 out of 30 

Race 2 out of 30 

Hispanic 7 out of 30 

Poverty Rate 15 out of 30 

Rural/Urban 26 out of 30 

Table 5: Regression analysis on removal rates data set containing just natural persons (by Author). 

 

Limiting our dataset to artificial persons, we see that being an out-of-state 

defendant is a statistically significant factor for the decision to remove to federal 

court just 2 times in 30 years (see Table 6). 
 

Number of years we find each variable statistically 

significant at p-value of 0.01 

 

Independent Variable Count 

Out-of-State Defendant 2 out of 30 

Race 3 out of 30 

Hispanic 3 out of 30 

Poverty Rate 8 out of 30 

Rural/Urban 26 out of 30 

Table 6: Regression analysis on removal rates data set containing just artificial persons using (by 
Author). 
 

These results demonstrate that geographic bias is not a significant factor in the 
decision to remove to federal court. If geographic bias was real, then out-of-

state defendants should prefer to remove from state court to federal court. But, 

as we have seen, they do not.  

When we combine these results relating to removals with our results 
showing that filing in federal courts is not related to the defendant’s or plaintiff’s 

out-of-state status, we can only draw one conclusion—geographic bias is no 

longer a problem in state courts. And, as a result, the very rationale that 
Congress and the Court have used to justify diversity jurisdiction is no longer 

valid. 

3. The Least Impactful Variable.—The previous subsection makes clear that 

geographic bias is not a statistically significant factor in forum choice. To 
further support that conclusion, we now engage in a thought experiment where 



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270 

we assume that all the variables in our models, including those relating to 
geographic bias, are causal factors for filing and removal rates. When we do so, 

we see that race, ethnicity, and poverty-rate are far more important factors (up 

to fifteen times more important) in filing and removal rates than is geographic 
bias. As a result, even if we were to assume that geographic bias is a statistically 

significant factor in filing or removal rates (which we know it is not), it is the 

least, by far, important factor in forum choice. Thus, geographic bias is both not 
a factor in forum choice (as shown by our analysis of statistical significance) 

and, even if it were, it is such an unimportant factor that it fails to provide any 

foundation upon which diversity jurisdiction could be justified.  

The irrelevance of geographic bias to filing and removal rates is supported 
by the relatively

219
 small size of the correlation coefficients for the variables that 

measure geographic bias. For example, filing rates are impacted nearly eight 

times as much by race and ethnicity and nearly ten times as much by poverty 
rate than by the percentage of filers who are natural persons and out-of-state 

defendants (see Table 7).
220

 In addition, filing rates are impacted five times as 

much by race, ten times as much by ethnicity, and fourteen times as much by 

poverty rate than by the percentage of filers who are artificial persons and out-
of-state defendants (see Table 7).  

 

Relative size of correlation coefficients for statistically significant years relative 

to filing rates 

  

Independent Variable Natural Persons Artificial Persons 

Out-of-State Defendant 1.00 1.00 

Race 7.81 5.03 

Hispanic 7.69 10.02 

Poverty Rate 9.63 14.13 

Table 7: Correlation coefficients for variables that measure geographic bias relative to out-of-state 
defendant filing rates (by Author). 

 

We have a smaller, but still large, difference when examining out-of-state 
plaintiffs. Here, filing rates are impacted nearly three times as much by race and 

ethnicity, and three and a half times as much by poverty rate than by the 

percentage of filers who are natural persons and out-of-state plaintiffs (see Table 

 
219. We use standardized regression coefficients (commonly called “beta” coefficients). 

Beta coefficients enable us to directly compare change (and ensure it is comparable change) 
because beta coefficients transform the non-standard coefficients onto the same scale (with a mean 
of 0 and a standard deviation of 1). See DAMODAR N. GUJARATI & DAWN C. PORTER, ESSENTIALS 

OF ECONOMETRICS 162 (4th ed. 2010) (discussing standardized variables and beta coefficients). 
220. We exclude the variable for urban and rural status in our discussion because it is a 

categorical variable (0 or 1) while our other variables are continuous (anywhere, inclusively, 
between 0.0 and 1.0) and they are therefore not comparable for the purposes of this section. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            271 

 

 
8). In addition, filing rates are impacted three times as much by race, six and a 

half times as much by ethnicity, and nine times as much by poverty rate than by 

the percentage of filers who are artificial persons and out-of-state defendants 
(see Table 8).  

 
Relative size of correlation coefficients for statistically significant years relative 

to filing rates 

  

Independent Variable Natural Persons Artificial Persons 

Out-of-State Plaintiff 1.00 1.00 

Race 2.82 3.13 

Hispanic 2.81 6.53 

Poverty Rate 3.49 9.01 

Table 8: Correlation coefficients for variables that measure geographic bias relative to out-of-state 
plaintiff filing rates (by Author). 

 
Finally, we have similar results when examining removals. Removal rates 

are impacted nearly 5 times as much by race, eight times as much by ethnicity, 

and seventeen times as much by poverty rate than by the percentage of filers 

who are natural persons and out-of-state defendants (see Table 9). And filing 
rates are impacted five and a half times as much by race and ethnicity, and nine 

times as much by poverty rate than by the percentage of filers who are artificial 

persons and out-of-state defendants (see Table 9). 
 
Relative size of correlation coefficients for statistically significant years relative 

to removal rates 

  

Independent Variable Natural Persons Artificial Persons 

Out-of-State Defendant 1.00 1.00 

Race 4.72 5.54 

Hispanic 7.89 5.52 

Poverty Rate 16.73 9.09 

Table 9: Correlation coefficients for variables that measure geographic bias relative to out-of-
state defendant removal rates (by Author). 

 

As these results show, not only is geographic bias not a statistically 
significant factor for filing or removal rates, even if we were to assume 

geographic bias was a factor in filing or removal rates, geographic bias would 

be, by far, the least important factor in forum choice. This is further evidence 

that geographic bias is not present in the court system and that geographic bias 
does not provide a rationale for diversity jurisdiction.  

4. Useless for Prediction and Explanation.—Geographic bias has little 

statistical significance as a factor in forum choice. In addition, even if we were 



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272 

to assume that all of the factors in our model, except for rural/urban, are causal 
factors for filing and removal rates, geographic bias is the least important factor. 

Finally, as we discuss infra, the removal of geographic bias variables from our 

models has only a de minimis effect on those models’ ability to explain filing or 
removal rates. 

When dealing with a model with multiple independent variables we can use 

the model’s coefficient of multiple determination (the model’s R
2
) to measure 

how well a model accounts for variation in the dependent variable; in essence, 

the R
2
 tells us how well the model predicts or explains the dependent variable.

221
 

R
2
 can take on a range of 0.00 (0%) where it predicts none of the behavior of 

the dependent variable or it can explain 1.00 (100%) of the behavior of the 
dependent variable.

222
 Our models attempt to explain the behavior of the filing 

rate and removal rate using variables relating to geographic bias, race, ethnicity, 

poverty-rate, and geographic density.  
Were geographic bias a factor in filing or removal rates, we would expect 

the removal of variables accounting for geographic bias to produce a large 

change in the model’s R
2
—its ability to account for variation in the filing or 

removal rates. But when we remove geographic bias variables from our models, 
we see only a de minimis change in the model’s ability to explain filing or 

removal rates. (See Table 10) 

 

% Change in R2 after removal of geographic bias terms 

  

Independent Variable Natural Persons Artificial Persons 

Out-of-State Defendant (filings) -0.39% -0.52% 

Out-of-State Plaintiff M2 (filings) -0.68% -0.71% 

Out-of-State Defendant (removals) -0.12% -0.45% 

Table 10: Percent Change in R2 after removal of geographic bias terms (by Author). 

 

Because removing geographic bias variables from the models produces only a 
de minimis effect on the models’ ability to predict or explain filing and removal 

rates, we must conclude that geographic bias is not currently a factor in forum 

choice.  
We have shown that over the last thirty years, geographic bias has rarely 

been a statistically significant factor for filing or removal rates, that even if we 

were to take geographic bias as a factor in filing or removal rates, its relative 
effect on filing and removal rates is marginal compared to other variables, and 

that removal of geographic bias variables from our model of filing and removal 

rates has almost no discernible effect on the models’ predictive ability. Such 

 
221. See Vern R. Walker, Restoring the Individual Plaintiff to Tort Law by Rejecting “Junk 

Logic” About Specific Causation, 56 ALA. L. REV. 381, 422 (2004) (discussing the coefficient of 
multiple determination). 

222. See id. 



2022]             ON THE DEATH OF DIVERSITY JURISDICTION            273 

 

 
results indicate that geographic bias is not a factor in a litigants’ decisions to file 

in federal or a state court or to remove to federal court, and, as a result, relying 

on geographic bias as a rational for diversity jurisdiction is contrary to the facts.  
 

V. THE END OF DIVERSITY JURISDICTION? 

 

The view that geographic bias justifies the existence of diversity jurisdiction 
is false. As we have shown, there is no connection between a litigant’s in-state 

or out-of-state status and filing or removal rates. The result of our study will 

likely lead policy makers to reassess the value of diversity jurisdiction and 
whether it should be eliminated or modified. Because this Article’s purpose was 

to determine whether geographic bias was a factor in forum choice, it is beyond 

this Article’s scope (and space constraints) to engage in an in-depth policy 

analysis. Nonetheless, five issues supporting elimination or modification of 
diversity jurisdiction are worth mentioning: costs, judicial reform, facts, false 

narratives, and at-risk populations. 

First, diversity jurisdiction greatly increases the costs of the federal courts 
and the caseloads of federal judges. In 2020, of the 332,732 cases pending in 

Federal Court, 140,812 (42%) arose under diversity jurisdiction.
223

 The most 

recent estimate (in 1988) of the annual cost of federal diversity jurisdiction 
found that diversity jurisdiction cost the federal government $131,306,263 a 

year.
224

 Given our ever-rising national debt, the pressure to cut the federal 

budget, and Congress’ repeated attempts to eliminate or limit diversity 

jurisdiction, it is possible that Congress will see these results as a rationale for 
either eliminating or sharply curtailing diversity jurisdiction. 

With regard to judicial reform, some have argued that the elimination of 

diversity jurisdiction would help eliminate improper manipulation of the judicial 
system by “intelligent lawyers” that result in “inconsistent decision making, 

unequal protection of the laws, and an incomprehensible judicial system.”
225

 

Others believe that, following Erie Railroad Co. v. Tompkins, federal diversity 
jurisdiction creates conflicts between the federal and state systems and 

“amounts to an intrusion into the ambit of the state courts . . . .”
226

 These 

reformers could argue that we should eliminate diversity jurisdiction to improve 

consistency in the judicial system and avoid forum shopping.  
Two factual issues also support eliminating or modifying diversity 

jurisdiction. First, if the Courts and Congress continue to justify diversity 

 
223. U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS, TABLE C-2-U.S. DISTRICT 

COURTS-CIVIL FEDERAL JUDICIAL CASELOAD STATISTICS (March 31, 2020), https://www.uscourts. 
gov/file/28151/download [perma.cc/8PNS-JLW7]. 

224. ANTHONY PARTRIDGE, THE BUDGETARY IMPACT OF POSSIBLE CHANGES IN DIVERSITY 
JURISDICTION 8 & TABLE 1 (Federal Judicial Center 1988). 

225. Robert W. Kastenmeier & Michael J. Remington, Court Reform and Access to Justice: 
A Legislative Perspective, 16 HARV. J. ON LEGIS. 301, 315 (1979). 

226. Howard C. Bratton, Diversity Jurisdiction—An Idea Whose Time Has Passed, 51 IND. 
L.J. 347, 350 (1976). 



                  INDIANA LAW REVIEW [Vol. 52:233 

 

274 

jurisdiction as a necessary response to geographic bias, their justification of 
would be based on something we now known to be factually false. This could 

undermine trust in the judicial system. In addition, continuing to ground 

diversity jurisdiction in geographic bias presents a false narrative about the 
United States. Resorting to geographic bias as a rationale entails that we live in 

a country where cross-state bias, hate, and distrust are core features of the 

American psyche. But, as our study shows, this is not the case. At least one kind 
of bias, geographic bias, has been eroded by time. To say otherwise presents a 

false, and harmful, narrative about American society. 

On the other hand, eliminating diversity jurisdiction could affect a wide 

range of at-risk persons. Our analysis shows that race, ethnicity, poverty-status, 
and population density affect filing rates in diversity actions.

227
 As such, 

eliminating diversity jurisdiction might negatively impact these groups by 

eliminating a setting in which they feel safe to litigate. For example, we know 
that Black Americans are systematically missing from the civil justice system 

due to distrust in the justice system.
228

 Removing a litigation pathway for those 

Black litigants willing to sue in federal court, and thereby willing to trust the 

judicial system, would be counterproductive. Similarly, litigants in rural or high-
poverty-rate counties may feel that the state or county courts lack the resources 

or have lower caliber judges than the federal courts. If this is true, then removing 

federal diversity jurisdiction would force these litigants into courts they believe 
are inadequate. Such action could erode trust in the judicial system. 

A proper discussion of any one of these issues would easily fill a law review 

article of its own. Moreover, legal scholars will undoubtedly find other issues 
relating to the elimination or modification of diversity jurisdiction. As a result, 

this Article can only mention these problems and conclude by restating this 

Article’s central thesis: The empirical evidence establishes that geographic bias 

is no longer a factor in forum choice and, as a result, diversity jurisdiction can 
no longer be justified by its role in mitigating such bias. 

 
227. See discussion supra Section IV.B. 
228. See DeVito, supra note 212, at 6.