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Full-Text Articles in Law
Is Federal Rule Of Civil Procedure 19(B) Too Discretionary?, Cesare Cavallini, Marcello Gaboardi
Is Federal Rule Of Civil Procedure 19(B) Too Discretionary?, Cesare Cavallini, Marcello Gaboardi
Akron Law Review
The courts are entrusted with the implementation of required joinder of parties under Federal Rule of Civil Procedure 19. Indeed, the courts have substantial discretion to determine, under the considerations listed in Rule 19(b), whether to continue the litigation without the person who should be joined in pending litigation or to dismiss the action because such a person cannot be joined. Therefore, the courts are asked to weigh the factors under Rule 19(b) and recognize that one factor can be more important than others in a given case or other factors not listed in Rule 19(b) can be important in …
At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger
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, Kermit Roosevelt Iii, Bethan R. Jones
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 …
The Erie Doctrine: A Flowchart, Michael S. Green
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.
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
Akron Law Review
T HE REVOLUTION IS HERE! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, …
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher
Akron Law Review
The revolution is here! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, which …
Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger
Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger
Akron Law Review
Some federal courts have followed the rule that amendments to correct misnomer or misdescription of a defendant will relate back where the proper defendant is in court. An amendment which substitutes or adds a new party, however, creates a new cause of action, and under such circumstances, there is normally no relation back to original filing for purposes of limitations.' Since the 1966 amendment of rule 15(c), however, a number of courts have permitted amendments substituting defendants after the statute of limitations has run.
In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan
In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan
Akron Law Review
The decision of Shaffer v. Heitner marks a significant departure from established principles concerning in rem jurisdiction. No longer may a court take jurisdiction of a lawsuit merely by sequestering any property of the defendant that happens to be located in that state.
In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus
In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus
Akron Law Review
The United States Court of Appeals, Second Circuit, in O'Connor v. Lee-Hy Paving Corp., upheld New York's insurance attachment procedure which serves as a vehicle for gaining personal jurisdiction over out-of-state defendants in causes of action that arise outside of New York. The court thereby determined that New York federal courts, in applying the procedures, had not violated defendant's due process because the minimum contacts requirement of the recent United Stated Supreme Court case, Shaffer v. Heitner, had been met.
Quasi In Rem Jurisdication; Minimum Contacts; State Statutes; Intermeat, Inc. V. American Poultry, Inc., John D. Frisby Jr.
Quasi In Rem Jurisdication; Minimum Contacts; State Statutes; Intermeat, Inc. V. American Poultry, Inc., John D. Frisby Jr.
Akron Law Review
"The decision of Intermeat, Inc. v. American Poultry, Inc. is the first decision rendered by a federal appeals court based on the United States Supreme Court decision of Shaffer v. Heitner. The Shaffer Court handed down a landmark decision in 1977 that appeared at first light to aim the principles of quasi in rem jurisdiction in a new direction. From the date of the decision it appeared that a court could no longer take jurisdiction of a lawsuit based merely on the fact that property of the defendant was located in the state in which the suit was filed. However, …
Local Rules Of Court, J. Patrick Browne
Local Rules Of Court, J. Patrick Browne
Akron Law Review
In the vast majority of cases, the Ohio Rules of Civil Procedure will be the primary source of authority governing the practice and procedure to be followed. But in some instances, the primary source of authority will be statutory, and the applicable sections of the Ohio Revised Code may or may not be supplemented by the Ohio Rules of Civil Procedure.
Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna
Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna
Akron Law Review
This article suggests that the practical impact of treating electronic searching as an expert function is to permit attorneys to focus and strategize on the process of electronic searching rather than on the completeness of document production. In effect, electronic searching permits attorneys to quit focusing on finding documents and begin focusing on identifying electronic sources of information on which reside relevant documents that can be extracted by means of electronic searching protocols.
Summary Judgment In The Shadow Of Erie, Jeffrey O. Cooper
Summary Judgment In The Shadow Of Erie, Jeffrey O. Cooper
Akron Law Review
This essay addresses one particular challenge to federal summary judgment practice: the possibility of a successful challenge to Rule 56 of the Federal Rules of Civil Procedure, pursuant to Erie Railroad v. Tompkins and its progeny. Part II of this essay addresses differences between summary judgment as practiced in federal courts pursuant to Federal Rule 56 and summary judgment as practiced in state courts, focusing in particular on differences in the ways the federal courts and some state courts allocate the burdens on moving and non-moving parties.Part III suggests that these differences are problematic under Erie and its progeny, and …
Must, Should, Shall, Steven S. Gensler
Must, Should, Shall, Steven S. Gensler
Akron Law Review
This Essay has three parts. Parts I and II look backward. Part I tells the story of the switch from ―shall‖ to ―should‖ in 2007. Part II then explains the events that led the Advisory Committee to propose the amendment that, if it takes effect as scheduled on December 1, 2010, will restore ―shall‖ to the text of Rule 56. Part III looks forward. It addresses a single, critical question: how much discretion to deny summary judgment will trial judges have once ―shall‖ is restored? The answer is this: with the restoration of ―shall,‖ trial courts will return to whatever …