Legal History Commons^™

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

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For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …

Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii

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What did legal realism bring to the conflict of laws? Why was the realist critique of the received wisdom so successful? And why, despite that success, is the realist movement in conflict of laws—and, indeed, the whole American choice of law revolution—seen as a failure?

In this Response, I suggest some brief answers to those questions. Realism, I suggest, is more successful than its critics think—though its project remains unfinished. A better understanding of realism's contributions can show us what work remains in the realist project.

Brainerd Currie’S Contribution To Choice Of Law: Looking Back, Looking Forward, Kermit Roosevelt Iii

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No abstract provided.

Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve

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Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

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The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data. Extravagant …

Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore Ruger

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Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock

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Resolving Renvoi: The Bewitchment Of Our Intelligence By Means Of Language, Kermit Roosevelt Iii

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Guantanamo And The Conflict Of Laws: Rasul And Beyond, Kermit Roosevelt Iii

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Constitutional Decision Rules, Mitchell N. Berman

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Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

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Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman

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In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially …

Direct And Collateral Federal Court Review Of The Adequacy Of State Procedural Rules, Catherine T. Struve

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Light From Dead Stars: The Procedural Adequate And Independent State Ground Reconsidered, Kermit Roosevelt Iii

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A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii

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The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

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Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

Territoriality And Moral Dissensus: Thoughts On Abortion, Slavery, Gay Marriage And Family Values, Seth F. Kreimer

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Regulating Violence On Television, Harry T. Edwards, Mitchell N. Berman

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Federal Judgments Law: Sources Of Authority And Sources Of Rules, Stephen B. Burbank

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The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer

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Note, The Preemption Doctrine: Shifting Perspectives On Federalism And The Burger Court, William W. Bratton

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