ABSURD OVERLAP: SNAP REMOVAL AND THE RULE OF UNANIMITY.

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Author: Travis Temple
Date: Oct. 2021
From: William and Mary Law Review(Vol. 63, Issue 1)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 8,523 words
Lexile Measure: 2340L

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Table of Contents INTRODUCTION 322 I. SNAP REMOVAL: FUNCTION, ORIGIN, AND TREATMENT 323 A. Removal Generally 324 B. Snap Removal Functionally 325 C. The Snap Removal Movement 326 D. Scholarly Critique 328 II. THE RULE OF UNANIMITY 330 A. Unanimity in Practice 330 B. Purpose and Origin 333 III. UNANIMITY AND SNAP REMOVAL 333 A. Logical Consistency 334 B. Textualist Applications of Unanimity to Snap Removal Cases 336 C. Evaluation of Textualist Outcomes 337 IV. A NONLEGISLATIVE SOLUTION 340 A. Proposed Judicial Approach 340 B. Comparison to Other Approaches 342 CONCLUSION 343

INTRODUCTION

American media and pop culture are filled with depictions of crafty lawyers using strained loopholes to escape the consequences of a rule. (1) Despite this cultural fixation on narrowly avoiding liability, real courts all across the judicial system rule against parties who attempt to manufacture favorable results in this way. (2) These rulings stand for the principle that, during the administration of justice, the purpose and end result of a law are often equally as important as its bare terms in writing. (3) However, recent decisions at the federal appellate level concerning "snap removal" (4) have elevated form over function. (5)

Snap removal employs "a literalist approach" to the statute governing the procedural mechanism for removing cases from state court to federal court. (6) In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied.' As discussed below, snap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. (8) This practice of removing a case before being served with formal process--essentially an act of gamesmanship of the civil procedure system--has gained appellate support over the past two years, making its application valid and uniform across three circuits. (9) Now that the practice has garnered traction, federal courts moving forward will not only have to adopt it as a valid rule, but also grapple with its application when it inevitably collides with other laws and procedures. (10) In particular, the rule of unanimity, requiring that all codefendants consent to a removal, (11) could present a unique challenge in snap removal cases. (12)

This Note argues that, when applied in conjunction with the rule of unanimity, the reasoning underlying snap removal's approval will present a contradictory and ultimately absurd result in certain factual scenarios. Therefore, the potential future applications of snap removal lend credence to its disapproval in the present. Part I discusses the function and rationale of snap removal, and Part II does the same for the unanimity rule. Part III analyzes the effects of these two concepts colliding in the same case using hypothetical examples and analogous case law. It further argues that simultaneous application of both snap removal and the rule of unanimity can give sole discretion over removal to the forum defendant, standing in stark contrast to the relevant statutory scheme. Finally,...

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Gale Document Number: GALE|A684683461