Academic journal article Duke Law Journal

Kroger Redux

Academic journal article Duke Law Journal

Kroger Redux

Article excerpt


I applaud Professor Hartnett for raising an important point concerning the application and effect of the American Law Institute's (ALI) proposed revision of 28 U.S.C. [section] 1367. (1) His point is one that I did not consider in my commentary accompanying that draft statute, and I am grateful for the opportunity now to respond. It is both the goal and the virtue of the ALI's approach to law reform that its proposals invite critical review even after the Institute has completed its work. The Institute's recommendations are just that: specific, concrete proposals laid on the table, as it were, for potential legislative enactment or judicial adoption. They neither claim nor deserve immunity from continuing inspection. The fact that the ALI's proposals lack any self-executing legal effect assures an interval for reconsideration after the Institute has completed formal action, free of the inertia that attaches to a statute or precedent once written into law. If they can be improved by criticism and responsive proposals advanced before enactment or adoption, so much the better.

Professor Hartnett's concern is a substantial one. To fully appreciate its substance requires elaboration of just what "the Kroger rule" is. Professor Hartnett notes that both the present [section] 1367 and the ALI's proposed substitute "are designed to embody the Kroger rule's denial of supplemental jurisdiction over claims by plaintiffs against third-party defendants impleaded by defendants" (2)--that is, impleaded by what might be called the "original defendant" against whom the plaintiff filed the complaint commencing a civil action (based solely on diversity jurisdiction) in a federal district court. Professor Hartnett goes on to state that the "[t]he current [section] 1367 achieves this goal rather straightforwardly. It denies supplemental jurisdiction in diversity cases over claims by plaintiffs against persons made parties pursuant to Rule 14. Although the current [section] 1367 has its problems, failure to maintain the Kroger rule is not one of them." (3)

I disagree. I think the current [section] 1367's method of codifying the Kroger rule, by flatly forbidding the exercise of supplemental jurisdiction in a diversity case over any claim by a plaintiff against a party joined under Rule 14, (40 is indeed problematic. It codifies a broader conception of the Kroger rule than either the facts or the reasoning of Kroger support; (5) the ALI's proposed statute was intended to cure this overinclusiveness. I do agree, however, that Professor Hartnett has discovered a significant problem with the ALI's alternative approach. The proposed text of the ALI's statute would codify an even narrower conception of the Kroger rule than the ALI intended. The under-inclusiveness of the ALI's alternative approach to codifying the Kroger rule needs to be either fixed or justified.

In Part I, I discuss the problem with the current [section] 1367's codification of the Kroger rule and the ALI's attempted rectification of that problem. In Part II, I set forth three possible responses: retaining the current [section] 1367 (an option I reject out of hand), remedying the problem with the ALI's statute, or rehabilitating the ALI's statute by rethinking the Kroger rule. In Part III, I discuss the remedial alternative, offering curative language that, if added to the ALI's statute, would make its reach match the ALI's aim. In Part IV, I take up the rehabilitative alternative. I reconsider whether even the modest conception of the Kroger rule that the ALI sought to codify is indeed worth preserving. I conclude that it is not and that the only conception of the Kroger rule worth codifying is the minimal conception that is limited to Kroger's facts, which in fact is codified by the ALI's proposed [section] 1367.


The current [section] 1367 codifies what might be called the robust conception of the Kroger rule. …

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