Academic journal article Duke Law Journal

Fiat Lux

Academic journal article Duke Law Journal

Fiat Lux

Article excerpt

I quite agree that our exchange's value is a function of the light rather than the heat that it generates. I am thankful for the further enlightenment provided by Professor Hartnett's reply. (1) My rejoinder is brief and does not respond to all that Professor Hartnett adds to our initial exchange, but I hope that it too will cast new light on issues that both unite and divide us.


It is useful to identify the audience--beyond ourselves--to whom our remarks are directed. In all likelihood it is not the American Law Institute (ALI). The Institute has completed its work on supplemental jurisdiction, and on the other statutes embraced by its Federal Judicial Code Revision Project. All that remains is the editorial process of combining the three tentative drafts dealing with these topics, each previously approved by the Institute, into a final omnibus report of the Institute's action. As Reporter I do not have the prerogative of changing what the Institute has approved, but I can insert a note in the commentary on the proposed new [section] 1367 alerting the reader to the fact and substance of this exchange. It is unlikely that the Council of the ALI will decide to bring the proposed new [section] 1367 back to the membership in order for it formally to decide which of the responses we have discussed in these pages should be adopted as the official position of the ALI. Publishing a revised draft and submitting it to the membership is an expensive proposition, and the Institute has limited resources. While the issue of which conception of the Kroger rule should be codified is an important one, it is nonetheless peripheral to the reforms the Institute has approved.

In my view, the audience we are addressing is Congress itself. As I said in my first contribution to this exchange, the virtue of the ALI's approach to law reform is that it proceeds in a quasi-legislative fashion, but its recommendations lack self-executing legal effect. It thus frames but does not end the debate that should occur if its recommendations are considered by Congress for possible enactment. The preceding exchange makes clear that there is a debatable issue concerning the Kroger rule that Congress must resolve. It also provides considerable illumination of the pros and cons of competing means of resolution.


Professor Hartnett agrees with me that what I called the robust conception of the Kroger rule, barring supplemental jurisdiction over any claim (even one defensive in nature) by a plaintiff against an impleaded third-party defendant, should not be codified in a revised [section] 1367. (2) He would prefer to codify what I called the modest conception of the Kroger rule--one that permits supplemental jurisdiction over a claim asserted by a plaintiff against an impleaded third-party defendant after the plaintiff has first been placed in a defensive posture by some party's assertion of a claim against the plaintiff. (3) Before proposing his own statutory language to achieve this result, he raises four objections to mine. (4) Three are technical: they usefully call for refinement rather than rejection of my language. The fourth is essentially aesthetic and provides an argument in favor of Professor Hartnett's alternative amendment. (5) I will discuss it in connection with that proposed alternative.

The first of Professor Hartnett's technical objections results from a semantic misunderstanding of the term "impleaded" as used in my proposed amendment, which refers to a supplemental claim "asserted by an original plaintiff against a third party impleaded by an original defendant." (6) He apparently construes "impleaded" to mean only the joinder of a third party under Rule 14, for purposes of indemnification or contribution, (7) and not the joinder of a third party under Rule 13(h) as an additional party to a cross-claim or counterclaim. I thought it clear that to "implead" means to join an additional party to preexisting litigation, and there is substantial authority to support this view, both as a matter of English usage and as a matter of American practice under Rule 13(h). …

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