Shoot First, Litigate Later: Declaratory Judgement Actions, Procedural Fencing, and Itchy Trigger Fingers
Sherwin, Robert T.
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Judges have always been suspect of declaratory judgment actions and, more particularly, the "mirror-image" case where the alleged wrongdoer takes on the role of the plaintiff. Federal courts typically point out that nothing in the Declaratory Judgment Act requires them to hear a request for declaratory relief; indeed, their jurisdiction is entirely discretionary. Consequently, most US. Courts of Appeals have developed a list of factors to assist lower courts in deciding whether to exercise jurisdiction over a declaratory judgment action or dismiss the case. One common element circuit courts often point to is whether the suit was brought "anticipatorily" by a plaintiff seeking to establish the forum of its choice, rather than waiting to be sued by the "natural plaintiff" in a less defendant-friendly forum. Courts bemoan such "races to the courthouse" as "disorderly" attempts at "procedural fencing." Unfortunately, the courts of appeals have done an atrocious job of providing any meaningful or helpful guidance to lower courts and litigants regarding what constitutes an anticipatory lawsuit. Courts routinely dismiss cases seeking declaratory relief by reasoning that the plaintiff was trying to distort the purpose of the statute and rob the natural plaintiff of its chosen venue. They do so by applying a mishmash of factors and rules that lack any uniformity and oftentimes clash with the statute's purpose. This Article attempts to bring some semblance of order to the "anticipatory lawsuit" exception. It does so by proposing two radical suggestions: First, that courts should (for the most part) forget about "races to the courthouse" and worry instead about factors that are easier to apply and anticipate. And second, that declaratory filers should have to give notice of their intention to file suit, thereby offering the natural plaintiff a fair opportunity to exercise its traditional litigation rights without being unfairly "beaten" to the courthouse.