Civil Procedure Commons^™

Creating An Unprecedented Number Of Precedents At The U.S. Court Of Appeals For Veterans Claims, Natsumi Antweiler

William & Mary Law Review

No abstract provided.

The Ballad Of Harry James Tompkins, Brian L. Frye

Akron Law Review

On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses …

Remedies, Equity & Erie, Caprice L. Roberts

Akron Law Review

This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants. Because, after all, the choice of federal versus state forum should not dictate the outcome. Further, notwithstanding calls to eliminate vestiges of equity’s unique characteristics and requirements, the gravitational pull of equity remains. There is value in continuing to honor equitable principles. And there is value in federal judges cultivating …

Beyond The Elements: Erie And The Standards For Preliminary And Permanent Injuctions, Michael T. Morley

Akron Law Review

Federal courts frequently avoid deciding whether federal or state law governs the availability of injunctive relief for state-law claims by simply declaring that both sets of standards are the same. Although federal and state standards for injunctions often incorporate similar elements, those elements often are phrased in somewhat different terms and relate to each other in different ways. Even when federal and state standards involve facially identical elements, federal and state courts often interpret and apply them differently based on completely distinct bodies of precedent that can lead to different outcomes. Because state and federal standards arise from, and refer …

The Erie/Sears/Compco Sqeeze: Erie's Effects On Unfair Competition And Trade Secret Law, Sharon K. Sandeen

Akron Law Review

On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.

Jurisdiction Stripping Of The Federal Circuit?, Shubha Ghosh

Akron Law Review

This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence. Instead of deferring to state law, the court creates its own federal common law of contracts and assignments, creating parallels with the debates arising from the 1938 Erie decision. This federal common law is inconsistent with the need for uniformity in the law governing patent transactions. To resolve this issue, Congress may consider stripping Federal Circuit jurisdiction over state contract law claims. This article examines the pros and cons of this proposal.

Brandeis's Ip Federalism: Thoughts On Erie At Eighty, Joseph Scott Miller

Akron Law Review

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context? This piece, prepared in connection with the “Erie …

At The Intersection Of Erie And Administrative Law: Front-Loading The Erie Question Into The Adoption Of A Federal Rule, Jeffrey L. Rensberger

Akron Law Review

The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law …

Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones

Akron Law Review

Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …

Erie And Constitutional Structure: An Intellectual History, Craig Green

Akron Law Review

Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term "constitutional" itself. Erie's cultural significance dropped as the legal process school faded. But it has resurfaced among twenty-first-century conservatives as a pillar of federalism (the "old myth") as well as separation of powers (the "new myth"). Especially given Erie's profound reputation as an iconic precedent, the legal community must …

The Erie Doctrine: A Flowchart, Michael S. Green

Akron Law Review

The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are, by and large, standard choice-of-law problems, much like those faced by state courts.

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. …

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.

Are Interlocutory Qualified Immunity Appeals Lawful?, Michael E. Solimine

Notre Dame Law Review Reflection

For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the …

The Haves Of Procedure, Ion Meyn

William & Mary Law Review

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s path, were futile.

Apparently, There Are Places Like Home: A Path To Propriety For Consent-By-Registration Jurisdiction In The Third Circuit, Brett E. Broczowski

Villanova Law Review (1956 - )

No abstract provided.

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

Legislative Reform Or Legalized Theft?: Why Civil Asset Forfeiture Must Be Outlawed In Ohio, Alex Haller

Cleveland State Law Review

Civil asset forfeiture is a legal method for law enforcement to deprive United States citizens of their personal property with little hope for its return. With varying degrees of legal protection at the state level, Ohio legislators must encourage national policy reform by outlawing civil asset forfeiture in Ohio. Ohio Revised Code Section 2981.05 should be amended to outlaw civil asset forfeiture by requiring a criminal conviction prior to allowing the seizure of an individual’s property. This Note proposes two plans of action that will restore Ohio resident’s property rights back to those originally afforded in the United States Constitution.

The Silliness Of Magical Realism, Kevin M. Clermont

Cornell Law Faculty Publications

Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.

Yet Professors Allen …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Drummond Financial Serivces, Llc Et Al., Order On Summary Judgment Motions, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Equitrade International, Inc. Et Al., Final Order Granting Defendant's Motion For Summary Judgment And Closing Case, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

John Souza Et Al., Order On Defendants' Motions For Summary Judgment, Elizabeth E. Long

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Felon Jurors In Vacationland, James M. Binnall

Maine Law Review

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility. Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance. From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders. Still, to date, no research has focused on jury service as a …

Samaca, Llc, Amended Order On Defendants' Motion For Attorneys' Fees And Expenses And Plaintiff Samaca, Llc's Cross Motion To Compel Arbitration Of Defendants' Motion For Legal Expenses, Alice D. Bonner

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Gush. Small Et Al., Order On Defendant Lankford's Motion To Compel Discovery And Plaintiffs' Motion For Protective Order, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Frances B. Bunzl Et Al., Order On Plaintiffs' Motion For Determination Of Admlssibility Of Documents, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.