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Full-Text Articles in Law
The Radical Majoritarianism Of Rule 23(B)(2), Myriam E. Gilles, Gary Friedman
The Radical Majoritarianism Of Rule 23(B)(2), Myriam E. Gilles, Gary Friedman
Faculty Articles
One often reads that, “because of the group nature of the harm alleged and the broad character of the relief sought,” Rule 23(b)(2) classes are necessarily “homogenous and cohesive group[s] with few conflicting interests.” But that truism is debatable; at minimum, it begs the question of what counts as a “conflicting interest.” After all, class members often have conflicting positions with respect to the outcome of litigation — especially in significant injunctive-relief complex, structural reform cases of the type that Rule 23(b)(2) addresses. For example, it may be the case that a minority within an injunctive class would prefer to …
Erie Step Zero, Alexander A. Reinert
Erie Step Zero, Alexander A. Reinert
Faculty Articles
Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.
To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …