An Active Learning Approach To Teaching Tough Topics: Personal Jurisdiction As An Example,
2019
Loyola University Chicago, School of Law
An Active Learning Approach To Teaching Tough Topics: Personal Jurisdiction As An Example, Cynthia M. Ho
Cynthia M Ho
No abstract provided.
Why Don’T Judges Case Manage?,
2019
Administrative Judge, Circuit Civil Division, Eleventh Judicial Circuit
Why Don’T Judges Case Manage?, Hon. Jennifer D. Bailey
University of Miami Law Review
The problems of cost and delay experienced by parties seeking civil justice have been the subject of complaints for nearly one hundred years, going back to the days of Roscoe Pound. In the past few years, court leadership across the country has emphasized judicial case management as a significant tool for delivery of cost-effective, fair, and timely civil justice. The declining civil caseload has brought new urgency to these problems as evidence grows that litigants are deserting the civil justice system. Calls for case management to contain cost and delay have come from the Chief Justice of the United States, …
Categorical Confusion In Personal Jurisdiction Law,
2019
George Washington University
Categorical Confusion In Personal Jurisdiction Law, Todd Peterson
Washington and Lee Law Review
In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme …
The Forgotten Property Right: The Unconstitutionality Of The At Home Standard In Assertions Of General Personal Jurisdiction Over Corporations,
2019
Texas A&M University School of Law (Student)
The Forgotten Property Right: The Unconstitutionality Of The At Home Standard In Assertions Of General Personal Jurisdiction Over Corporations, Peter Kuylen
Texas A&M Journal of Property Law
With its move to the “at home” standard in Goodyear, Daimler, and BNSF, the Supreme Court significantly restricted the exercise of general personal jurisdiction over nonresident corporation defendants. This restriction offers questionable actual benefits to corporate defendants, but its rigid focus on defendant’s rights has impacted the ability of certain plaintiffs to bring a cause of action against those defendants. Because the at home standard infringes on this group of plaintiffs’ ability to assert their property right of redress in violation of the Due Process Clauses of the Constitution (Fifth and Fourteenth Amendments), the Court should return to the previous …
The Federal Courts’ Rulemaking Buffer,
2019
William & Mary Law School
The Federal Courts’ Rulemaking Buffer, Jordan M. Singer
William & Mary Law Review
Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.
Creating An Unprecedented Number Of Precedents At The U.S. Court Of Appeals For Veterans Claims,
2019
William & Mary Law School
Creating An Unprecedented Number Of Precedents At The U.S. Court Of Appeals For Veterans Claims, Natsumi Antweiler
William & Mary Law Review
No abstract provided.
The Ballad Of Harry James Tompkins,
2019
The University of Akron
The Ballad Of Harry James Tompkins, Brian L. Frye
Akron Law Review
On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses …
Remedies, Equity & Erie,
2019
The University of Akron
Remedies, Equity & Erie, Caprice L. Roberts
Akron Law Review
This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants. Because, after all, the choice of federal versus state forum should not dictate the outcome. Further, notwithstanding calls to eliminate vestiges of equity’s unique characteristics and requirements, the gravitational pull of equity remains. There is value in continuing to honor equitable principles. And there is value in federal judges cultivating …
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions,
2019
The University of Akron
Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions, Michael T. Morley
Akron Law Review
Federal courts frequently avoid deciding whether federal or state law governs the availability of injunctive relief for state-law claims by simply declaring that both sets of standards are the same. Although federal and state standards for injunctions often incorporate similar elements, those elements often are phrased in somewhat different terms and relate to each other in different ways. Even when federal and state standards involve facially identical elements, federal and state courts often interpret and apply them differently based on completely distinct bodies of precedent that can lead to different outcomes. Because state and federal standards arise from, and refer …
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law,
2019
The University of Akron
The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law, Sharon K. Sandeen
Akron Law Review
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.
Jurisdiction Stripping Of The Federal Circuit?,
2019
The University of Akron
Jurisdiction Stripping Of The Federal Circuit?, Shubha Ghosh
Akron Law Review
This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence. Instead of deferring to state law, the court creates its own federal common law of contracts and assignments, creating parallels with the debates arising from the 1938 Erie decision. This federal common law is inconsistent with the need for uniformity in the law governing patent transactions. To resolve this issue, Congress may consider stripping Federal Circuit jurisdiction over state contract law claims. This article examines the pros and cons of this proposal.
Brandeis's Ip Federalism: Thoughts On Erie At Eighty,
2019
The University of Akron
Brandeis's Ip Federalism: Thoughts On Erie At Eighty, Joseph Scott Miller
Akron Law Review
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context? This piece, prepared in connection with the “Erie …
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule,
2019
The University of Akron
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger
Akron Law Review
The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law …
Adrift On Erie: Characterizing Forum-Selection Clauses,
2019
The University of Akron
Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
Akron Law Review
Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …
Erie And Constitutional Structure: An Intellectual History,
2019
The University of Akron
Erie And Constitutional Structure: An Intellectual History, Craig Green
Akron Law Review
Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term "constitutional" itself. Erie's cultural significance dropped as the legal process school faded. But it has resurfaced among twenty-first-century conservatives as a pillar of federalism (the "old myth") as well as separation of powers (the "new myth"). Especially given Erie's profound reputation as an iconic precedent, the legal community must …
The Erie Doctrine: A Flowchart,
2019
The University of Akron
The Erie Doctrine: A Flowchart, Michael S. Green
Akron Law Review
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.
Erie As A Way Of Life,
2019
The University of Akron
Erie As A Way Of Life, Ernest A. Young
Akron Law Review
This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just, right, and true. …
Adrift On Erie: Characterizing Forum-Selection Clauses,
2019
University of Pennsylvania Carey Law School
Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
All Faculty Scholarship
Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …
Procedure In Context,
2019
University of Pennsylvania Carey Law School
Procedure In Context, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception,
2019
Washington and Lee University School of Law
If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch
Washington and Lee Law Review Online
The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …
