Law Commons^™

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 …

Symposium: The Future Of Summary Judgment Foreword - Summary Judgment And The Influence Of Federal Rulemaking, Bernadette Bollas Genetin

Akron Law Review

In this review of the evolving role of summary judgment, Professor Steven Gensler provides insight into whether Rule 56(c) give judges discretion to deny summary judgment even if the preconditions of Rule 56(c) have been met, i.e., if there is no genuine issue of material fact and judgment as a matter of law could be entered, and Professor Edward Brunet engages directly the important debate regarding intemperate use of summary judgment to deny potentially meritorious claims, contending that currently available ―safeguards‖ can prevent inappropriate grant of summary judgment. Professor Stephen Burbank and Professor Linda Mullenix enlarge the discussion to consider …

"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

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 …

Defining The Word: "Maintain"; Context Counts, Jack Friedenthal

Akron Law Review

To understand what a word means, especially one such as “maintain” that has multiple formal definitions, one must consider the background and purpose for which it is utilized.

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

Maintaining Uniform Federal Rules: Why The Shady Grove Plurality Was Right, Mark P. Gaber

Akron Law Review

This Article examines the Court’s decision in Shady Grove, concluding that Justice Scalia’s plurality opinion has the better argument—his approach is the most consonant with precedent and the least disruptive to the careful balance the Court has struck with its Erie line of cases. Part II examines Justice Scalia’s plurality opinion, and considers its strengths and weaknesses. I then turn to Justice Ginsburg’s dissenting opinion, concluding that it rests on a fundamental misapplication of the Erie doctrine, though she admirably attempts to give teeth to the substantive rights limitation of the Rules Enabling Act—a limitation that the Erie doctrine admittedly …

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

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 …

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …

The Politics Of Procedure: An Empirical Analysis Of Motion Practice In Civil Rights Litigation Under The New Plausibility Standard, Raymond H. Brescia, Edward J. Ohanian

Akron Law Review

This Article attempts to assess, empirically, whether the Court’s introduction of the so-called “plausibility standard” in the context of civil pleadings has had a disparate impact on civil rights claims, particularly in employment and housing discrimination cases. In a previous study conducted by one of the co-authors of this Article, it was revealed that in a sample of employment and housing discrimination cases, courts were more likely to dismiss these cases based on the lack of specificity of the pleadings after the Court’s decision in Iqbal. Furthermore, that study also found, after Iqbal, a significant rise in both the number …

Personal Jurisdiction: A Doctrinal Labyrinth With No Exit, Simona Grossi

Akron Law Review

My goal is not to categorize, critique, or refine existing doctrine, but to challenge the idea that the Supreme Court’s case-by-case approach to personal jurisdiction represents an arc of progress. In my view, all too often the Court’s apparent refinements operate as detours from the fundamental principles at stake. The result is a clutter of doctrinal tests that is inconsistent with principle and confuses more than it informs. In Part II, I briefly explore the traditional bases of jurisdiction and the Court’s elaboration of the minimum contacts test in International Shoe Co. v. State of Washington. 9 Here, I show …