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Erie And The Rules Of Evidence, Edward K. Cheng
Erie And The Rules Of Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have long …
Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick
Twombly And Iqbal Reconsidered, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules …