Law Commons^™

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal …

Multiple Attempts At Class Certification, Tobias Barrington Wolff

All Faculty Scholarship

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.

This essay was solicited as a reply to a recent …