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Full-Text Articles in Law
Erie As A Way Of Life, Ernest A. Young
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. …
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 …
"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion - But Should Not Have, Donald L. Doernberg
"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion - But Should Not Have, Donald L. Doernberg
Akron Law Review
This Article discusses the effect Shady Grove is likely to have on vertical choice-of-law in cases involving a Federal Rule of Civil Procedure...Part II of the Article discusses the majority opinion. Part III deals with parts II-B and II-C of Justice Scalia’s opinion and with the concurrence. Part IV addresses the dissent. Part V offers a critical evaluation of the opinions. Part VI discusses some of the scholarly interpretations of REA and suggests two possible perspectives on REA’s substantive-rights limitation that make it more understandable in light of the Erie doctrine’s history, easier to navigate, and less of a threat …
Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin
Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin
Akron Law Review
This Article chronicles the Supreme Court’s inconsistent use of an avoidance canon in cases construing the substantive rights limitation of the Rules Enabling Act (Enabling Act or REA). It focuses primarily on the avoidance canon as used in cases under the REA branch of the Erie doctrine but also discusses avoidance in other REA contexts. The Article concludes that a reassessment and refocusing of the avoidance canon in Enabling Act jurisprudence is necessary... This Article explores the purposes and methodology that should guide avoidance in REA cases... I focus, in this Article, primarily on a subset of this group of …
The Fruits Of Shady Grove: Seeing The Forest For The Trees, Glenn S. Koppel
The Fruits Of Shady Grove: Seeing The Forest For The Trees, Glenn S. Koppel
Akron Law Review
Part II will sketch the facts of the case to prepare for an exploration of the roots of Shady Grove in Part III, which traces the evolution of the Court’s Erie jurisprudence. At various points along the way, I will stop to anticipate where one or more of the several opinions in Shady Grove will shed light, in Part IV, on the meaning of Shady Grove
Shady Grove And The Potential Democracy-Enhancing Benefits Of Erie Formalism, Jeffrey W. Stempel
Shady Grove And The Potential Democracy-Enhancing Benefits Of Erie Formalism, Jeffrey W. Stempel
Akron Law Review
Article written as part of Symposium: Erie Under Advisement: The Doctrine After Shady Grove.
Symposium: Erie Under Advisement: The Doctrine After Shady Grove; Forward: Erie's Gift, Jay Tidmarsh
Symposium: Erie Under Advisement: The Doctrine After Shady Grove; Forward: Erie's Gift, Jay Tidmarsh
Akron Law Review
A forward to the articles in this journal. All the articles manifest concern for the constitutional and structural concerns that animated Erie and its procedural progeny. Several articles, especially those by Professors Doernberg, Koppel, and Stempel examine the jurisprudential commitments underlying the Erie doctrine in general and the various opinions in Shady Grove in particular. Professors Genetin and Friedenthal examine the difficulties of, respectively, statutory and rule interpretation in the Erie context. Professor Koppel emphasizes the value of procedural uniformity. Professor Doernberg evaluates the relationship between the procedural Erie doctrine and concerns for federalism. Mr. Gaber brings some realpolitik to …