Law Commons^™

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Journal Articles

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

All Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …

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

Akron Law Faculty Publications

This essay provides an overview of symposium articles on The Future of Summary Judgment, which were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix, explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, …

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

Bernadette Bollas Genetin

This essay provides an overview of symposium articles on The Future of Summary Judgment, which were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix, explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, …

Slides: Northern Integrated Supply Project, Northern Front Range--Colorado, Don Carlson

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Don Carlson, Northern Colorado Water Conservancy District

20 slides

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …

Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents paint necessarily touches …