In my civil procedure class, students often question the continuing vitality of diversity jurisdiction---the legal principle that permits state law cases to be brought in federal court solely because the plaintiff and defendant reside in different states. The premise of diversity jurisdiction is that the state courts will be biased in favor of parties from their own state. Presumably, the state judges themselves are the ones who will exhibit the bias, because jurors in federal court are drawn from the state within which the court sits.
My students wonder whether bias against out-of-staters is a widespread phenomenon. Their skepticism seems especially warranted given that for natural persons, state citizenship means domicile, which often won't correlate very well with whatever regional bias there is. For example, if I were to move to Alabama tomorrow, with the intent of remaining indefinitely, the premise underlying diversity jurisdiction would be that an Alabama court would be biased in my favor.
Whether or not diversity jurisdiction is justified, yesterday's Supreme Court decision in the original jurisdiction case of New Jersey v. Delaware illustrates that home state bias may not be entirely a thing of the past. The case involved the question whether Delaware had the authority to deny a NJ-approved offshore liquefied natural gas storage and processing facility. The facts and law are too tedious to describe, but Delaware won. Only two Justices voted for New Jersey: Justices Scalia and Alito, both natives of Trenton. Coincidence?
Posted by Mike Dorf