Civil Procedure - Wetlaufer - 4/10/07 Set

Front 1

The Rules of Decision Act provides

Back 1

"The laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the United States..."

Front 2

What is the rule applied by the Court in the Guaranty Trust Co. v. York (1948) (p. 232)?

Back 2

If the choice between a state and a federal rule is outcome-determinative, the rule is substantive for purposes of Erie; if not, it is procedural for purposes of Erie. In this case, the choice between the state and federal statutes of limitations is outcome-determinative, the statute of limitations is therefore Erie-substantive, and the Court therefore applied the state rule.

Front 3

What is the nature of the rule applied in Byrd v. Blue Ridge Rural Elec. Coop (1958) (p. 235)? What is the rule?

Back 3

It is a balancing test. In choosing between state and federal rules, if (1) the state's interest in its rule is law; (2) the federal interest in its rule is high; and (3) the probability of outcome-determinacy (POD) is not high, the federal rule should be applied. In that sense, the rule in question is Erie-procedural.

Front 4

What type of argument is found in both Swift v. Tyson and in Erie v. Tompkins?

Back 4

They both make arguments from statutory language (i.e. the language of the Rules of Decision Act) or, if you like, arguments from statutory language properly understood. (Erie also makes several other types of argument.)

Front 5

When the Erie Court tells the story about the taxicabs, is it offering an argument? If so, what is it arguing for (or against)? And what kind of argument is it offering?

Back 5

Yes it is offering an argument; an argument against the doctrine of Swift; an argument from bad consequences.

Front 6

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with an argument from the actual, historical intention of a legislature. If so, explain.

Back 6

Yes - the Erie Court cites the "recent research of a competent scholar" which has established that the Swift Court had been mistaken in its understanding of Congress' purpose in enacting the Rules of Decision Act.

Front 7

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with an argument from bad consequences? Or, if you like, from "mischievous results"? If so, provide examples.

Back 7

The Erie Court support its reversal of Swift v. Tyson with three different arguments from bad consequences: 1) the injustice arising from the forum shopping associated with the taxicab extravaganza. 2) "Swift v. Tyson introduced grave discrimination by non-citizens against citizens." and 3) continuing uncertainty as to the line between general law and local law. (225)

Front 8

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with an argument from failed purposes? If so, provide examples.

Back 8

Yes - the Erie Court argues that Swift v. Tyson Court intended to promote uniformity of law among the states but that the state courts persisted in their own opinions on questions of common law. (266-67)

Front 9

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with an argument from the nature of the law? If so, explain.

Back 9

Yes. The Erie Court argues that the Swift decision had rested, at least in part, on the earlier Court's misunderstanding as to the nature of law - namely its mistaken belief that there somehow existed a "general common law" that might be contrary to the settled law of a particular state.

Front 10

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with a Constitutional argument? If so, explain.

Back 10

Yes - the Erie Court argued that Swift v. Tyson represented an unconstitutional interpretation of the Rules of Decision Act because it gave to the federal courts the right to invade the rights of the states to declare the common law of the states.

Front 11

In Erie v. Tompkins (224), does the Court support its reversal of Swift v. Tyson with argument from changed circumstances? If so, explain.

Back 11

Yes. Most of the arguments made in Erie could be described as arguments from changed circumstances, including arguments from new learning and changed understandings (e.g., of Congressional intent, the consequences of the Swift rules, the nature of law).

Front 12

What type of argument does the Court make in Guaranty Trust v. New York (1945) (232)?

Back 12

It makes an argument from the distinction between two terms (substantive and procedure), properly understood for purposes of Erie.

Front 13

In Hanna v. Plumer, what is the losing argument - stated as a syllogism?

Back 13

(1) Where the choice of law is outcome determinative, the rules in question are Erie-substantive and state law applies, and where the choice of law is not, the rules in question are Erie-procedural and the federal law applies.
(2) the choice between the state and federal rules for service of process is outcome-determinative.
(3) therefore the service of process rule is Erie-substantive and the state rule applies.

Front 14

In Hanna v. Plumer, how does the Court transform the case at bar from one in which the choice of law is outcome-determinative (and thus the state rules applies) to one in which the choice of law is not outcome-determinative (and thus the federal rule applies).

Back 14

It argues (1) that outcome-determinacy, properly understood in light of the twin aims of Erie, is not outcome-determinacy at the time of the appeal (present in the case at bar) but outcome-determinacy when the plaintiff might have engaged in forum-shopping and (2) that outcome-determinacy, properly understood in the light of the twin aims of Erie, is not present in the case at bar.

Front 15

A matched pair of arguments from statutory language, properly understood, is found in what two cases involving the vertical choice of law in diversity cases? Explain.

Back 15

Swift v. Tyson and Erie v. Tompkins, both of which are making polar opposite arguments from the meaning of a single word (law) in the Rules of Decision Act.

Front 16

Arguments from the (asserted) meaning of a text in light of what's previously been settled through earlier precedent or stare decisis can be found

Back 16

Almost everywhere. Can you provide examples?

Front 17

What examples of arguments based on the meaning of some term or distinction, properly understood, are found in Swift, Erie, Guaranty Trust, and Hanna v. Plumer?

Back 17

In Swift and Erie, the Courts made opposite arguments from the meaning of the word "law," properly understood; in Guaranty Trust, the Court relies upon the distinction between "substance" and "procedure," properly understood for purpose of Erie; and in Hanna v. Plumer, the Court argued from the meaning of the term "outcome-determinative," properly understood in light of the twin aims of Erie.

Front 18

Examples of arguments from historical intent attributed to some previous author, one from personal jurisdiction and one from the Erie series, one involving the intent of a legislature and the other involving the intent of an earlier court, are:

Back 18

(1) The Court's argument in Erie from the intention attributed to Congress in passing the Rules of Decision Act and (2) the Shaffer Court's argument from the intention attributed to the International Shoe Court or the Hanna Court's argument from the intention attributed the Erie Court.

Front 19

We've seen lots of arguments based on purposes or policies or intentions subsequently attributed to some earlier case. What was the earlier case whose purposes etc. were involved in Shaffer? Erie? Guaranty Trust? Hanna?

Back 19

Shaffer argued from purposes, etc. attributed International Shoe: Erie, to Shift v. Tyson; Guaranty Trust, to Erie; and Hanna, to Erie.

Front 20

My favorite example of an argument based on bad consequences, directed against some rule the speaker would have us reject is

Back 20

Erie v. Tompkins, where the Court argues that the rule of Swift - which it would have us reject - produced bad consequences in the form of forum-shopping (e.g. the taxicab extravaganza) and certain forms of discrimination associated with diversity jurisdiction.

Front 21

My favorite example of an argument based on a failed purpose, directed against some rule the writer would have us reject is (from the Erie chapter):

Back 21

Erie v. Tompkins, where the Court argues that the rule of Swift - which it would have us reject - was intended (by Justice Story) to promote uniformity among the laws of the states but that it has failed in that purpose.

Front 22

My favorite example of an argument based on changed circumstances and/or new learning, directed against some rule the writer would have us reject is (from the Erie chapter):

Back 22

Erie v. Tompkins, where the Court argues that the rule of Swift - which it would have us reject - rested upon what we now know to be a misunderstanding of Congress' intent in passing the Rules of Decision Act and a misunderstanding of the nature of law.

Front 23

My favorite example from something that isn't said is (from the Erie chapter):

Back 23

in Byrd v. Blue Ridge (1958) where the Court argued that the failure of an earlier state court to announce the reasons for an earlier decision weighed against a party's argument that the earlier court had much cared about its result and that it had acted for a particular reason.

Front 24

My favorite example of the counter-argument that someone else's argument (or rule, principle, or explanation) "proves too much," this one drawn from Justice Harlan's concurrence in Hanna v. Plumer, is

Back 24

He argues that Guaranty Trust's outcome-determinative test...if, taken literally, proves too much [because] any rule, no matter how clearly "procedural," can affect the outcome of litigation if it is not obeyed. Thus a liberal application of "outcome determinacy" would cause us to label even purely procedural rules (i.e. those r.e. paper size) as "Erie substantive" and we all know that can't be right. Since that result is clearly wrong, so must be the literal reading of the test which produces that result. Note: this argument has been omitted from your casebook.

Front 25

What claims are subject to heightened pleading requirement and, with respect to those claims, what is required?

Back 25

Fraud and mistake. According to Rule 9(b), these claims must, for purposes of pleadings, be "stated with particularity."

Front 26

Describe a situation in which a court might decide not to permit the amendment of pleadings and thus might hold one of the parties to an allegation, admission or denial known to be false?

Back 26

Describe Zielinski or Beeck.

Front 27

What does it mean to say that the amendment of a pleading "related back"? To what time does such an amendment "relate back"? Why does it sometimes matter?

Back 27

To say that the amendment of a pleading "relates back" is to say that - for purposes of the statute of limitations - it is taken to have been filed on the date on which the original pleading was filed. It matters because, if the amendment does not relate back, the amended claim may otherwise be barred by the statue of limitations.

Front 28

A judge's refusal to permit the amendment of a complaint could result in a decision that is otherwise contrary-to-fact or contrary-to-substantive-law if

Back 28

A defendant is held to his admission, in the answer, of a fact later learned to be false (as might have happened in Aquaslide (394)), a defendant is barred from asserting an otherwise sufficient defense because it had not been pleaded as an affirmative defense (as happened in Layman (387)), a plaintiff is barred from asserting an otherwise good cause of action (as happened in Moore (400)) and might have happened in Bonerb (402)).

Front 29

What is the standard that controls whether the amendment to a pleading "relates back"?

Back 29

According to FRCP 15, an amendment to a pleading may "relate back to the date of the original pleading when...the claim or defense to be set forth in the original pleading" - sounds like STO, CNOF, SAOF relatedness).

Front 30

If, in theory, preponderance of the evidence means 51% or more, what are the resistances or disinclinations that sometimes cause that number to drift higher?

Back 30

Sometimes we resist statistical evidence, circumstantial evidence, market share evidence, lazy plaintiffs, and the idea of shifting costs onto defendant in really really close cases.

Front 31

What is the effect of the Celotex case?

Back 31

It established the proposition that a defendant seeking a motion for summary judgment need not prove the opposite of the elements of the plaintiff's case (on which the plaintiff will bear the burden of persuasion at trial) but need merely "show" that the plaintiff lacks proof of that element. Defendant seeking summary judgment not r3equired to demonstrate "I can prove that I'm not liable" but only to demonstrate that "the plaintiff can't prove that I'm liable.' In the meantime, a plaintiff seeking summary judgment must demonstrate "I can prove that he's liable."

Front 32

Under what authority may the right to a jury trial in federal court arise? Must it be affirmatively asserted? May it be waived?

Back 32

The right arises from the 7th Amendment and, in certain cases, from federal statute. It must be affirmatively asserted and, if not asserted, it may be waived.

Front 33

With respect to the right to a jury rail, what is provided by the 7th Amendment?

Back 33

The 7th Amendment preserves the common-law right to a jury trial as it prevailed in England in 1791, when the amendment was adopted. At that time there was a right to a jury trial in courts of law but not in courts of equity.

Front 34

The 7th Amendment is understood to ensure the right to a jury trial...

Back 34

(1) on issues that in 1791 would have been legal and not equitable and
(2) in cases involving claims that did not yet exist in 1791, on issues that are most nearly analogous to those that in 1791 would have been legal and not equitable.

Front 35

If the parties seek legal and equitable claims simultaneously, the 7th Amendment ensures...

Back 35

a right to a jury trial on all issues that are (or are like those that are) historically legal, including those issues that may be common to the legal and equitable claims.

Front 36

If a party uses a procedural device that was in 1791 available only in equity (e.g. interpleader, class action, shareholder's derivative action, intervention, or declaratory judgment), will the federal court - for purposes of the right to a jury trial - overlook the fact that the device is historically equitable and then determine whether there is a right to a jury trial on the basis of whether the issues are legal or equitable?

Back 36

The court will ignore the fact that the device is historically equitable and will decide on the basis of whether the issues are (or are like those that are) historically legal or equitable.

Front 37

Has the 7th Amendment been held to be incorporated or implicit in the due process clause of the 14th Amendment and, as a result to control practice in state courts?

Back 37

Nope.

Front 38

Assume there are several different prime values that a society might pursue and that they include freedom of contract, equality, aggregate wealth, fairness, and the sovereignty of the states. If a decision-maker is maximizing one of those prime values, is it necessarily true that he is not maximizing the others?

Back 38

Yes. Unless the two prime values really are identical - and the question assumes that they are different - maximizing one necessarily entails not maximizing the others. Thus someone who is committed to maximizing one (e.g. freedom of contract or fairness) can always be shown wiling to sacrifice another (e.g. equality or state sovereignty). That said, an argument from the two different prime values will sometimes, though not always, reach the same result.

Front 39

EXTRA! An example of a counter-argument against someone else's argument from history and in which it is asserted that history ought not to be decisive (even if it is a good history) - provided by Oliver Wendall Holmes in texts we did not study - is

Back 39

"It is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 61 (1897).

Front 40

Arguments against legal arguments based on "legal fictions" include (and here I'm just interested in your understanding the spirit of these objections)

Back 40

"In English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness." "Fiction of use to justice? Exactly as swindling is to trade." "The most pernicious and basest sort of lying." "It affords presumptive and conclusive evidence of moral turpitude in those by which it was invented and first employed." "It was never been employed but with a bad effect." Thus Jeremy Bentham warmed to this topic.

Front 41

My favorite simplified example of an argument "X cannot account for Y" (using only numbers) is

Back 41

If we take the data series "2, 4, 6, 8, 10" and the proposed rule "up by even numbers," the proposed rule can account for all the data. But if we take the data series "2, 4, 6, 8, 10, 11" and the proposed rule "up by even numbers," the proposed rule "cannot account for" 11. Similarly "up by even numbers" cannot account for the absence of 8 in "2, 4, 6, 10."

Front 42

My favorite examples of "begging the question" through the dependency form of circularity is

Back 42

(1) The Bible says that God exists.
(2) The Bible is true because it is the word of God.
(3) Therefore God exists.
The argument is circular because the conclusion (God exists) depends upon the truth of both premises while the second premise can be true if but only if the conclusion is true. Thus the truth of the conclusion depends on the truth of the premises while the truth of (one of) the premises depends on the truth of the conclusion.

Front 43

My second example of "begging the question" through the dependency form of circularity, this one involving the value of trade names, is

Back 43

(1) Courts must protect as property those things that are economically valuable.
(2) Trade names are economically valuable.
(3) Therefore the courts must protect trade names.
The argument is circular because the conclusion (courts protect trade names) depends upon the truth of both premises while the second premise (trade names are valuable) is true if but only if the conclusion is true. Thus the truth of the conclusion depends on the truth of the premises while the truth of (one of) the premises depends on the truth of the conclusion.

Front 44

My favorite example of "begging the question" through the use of a pseudo-explanation is

Back 44

Moliere's chemist's "explanation" that opium causes people to fall asleep because it has a "dormative power" - when the only evidence of that "dormative power" is the fact that it causes people to fall asleep. The "explanation" is presented as being useful and informative when, in fact, it is circular, totally uninformative and misdirects the reader's attention. Compare the contention that might have been made under Pennoyer that "International Shoe is subject to personal jurisdiction because it is "present" in the state of Washington." And compare "trade names deserve protection because they have economic value."

Front 45

EXTRA! My favorite example of an argument from the (asserted) meaning of a text as supplemental by what's taken to be implied, this one drawn from Constitutional law is:

Back 45

McCulloch v. Maryland (1819) where the Court implied Congressional power to incorporate a bank from the constitutional grant of other, broader enumerated powers.

Front 46

EXTRA! My favorite example of an argument from the (asserted) meaning of a text as supplemental by what's taken to be reasonable, this one taken from antitrust law, is

Back 46

Standard Oil Co. of N.J. v. U.S. (1911), where the Supreme Court declared that the Sherman Act's prohibition of "every contract, combination..., or conspiracy in restraint of trade" only extends to such arrangements as are in "unreasonable" restraint of trade.

Front 47

EXTRA! My favorite example of an argument from the (asserted) meaning of a text as supplemented by an understanding of the nature of the text as a whole, this one drawn from Constitutional law is

Back 47

McCulloch v. Maryland (1819) where the Court found that Congress had the constitutional power to incorporate a bank. It said that we "must never forget...that it is a constitution were are expounding," that it is in the "nature of such documents that they should speak broadly and must be read with flexibility," and that - read in that way - a law is "necessary and proper" if it is merely useful and appropriate.

Front 48

EXTRA! One of my favorite examples of a "slippery slope" argument, this one drawn from Constitutional law and involving the commerce power and the destruction of our way of life, is

Back 48

Hammer v. Dagenhart (1918) in which the Supreme Court argued that a law must be unconstitutional because "if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government practically destroyed."

Front 49

EXTRA! One of my favorite examples of a "slippery slope" argument, this one drawn from Constitutional law and Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding "equal but separate" railroad accommodations" is

Back 49

"If a state can prescribe...that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not...punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court room and blacks to the other? And why may not states require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?" 557-58

Front 50

EXTRA! One of my favorite examples of a "slippery slope" argument, this one draws from Constitutional law and involving the commerce power and childbirth, this one drawn from Justice McReynold's dissent in NLRB v. Jones & Laughlin (1938), is

Back 50

A "more remote and indirect indifference with interstate commerce or a more definite invasion of the powers reserved to the states is difficult, if not impossible, to imagine. Whatever effect any course of labor discontent may ultimately have upon commerce is far too indirect to justify Congressional regulation. Almost anything - marriage, birth, death - may in some fashion affect commerce." Could we also say that he is saying the other side has "proven too much?"

Front 51

EXTRA! A simple argument from exclusion involving letters is

Back 51

Premise 1: X or Y.
Premise 2: Not X.
Conclusion: Therefore Y.

Formally this is a valid syllogism that is persuasive only if both premises are true.

Front 52

EXTRA! You will sometimes hear statements like "the purpose of the antitrust law (or property law, contract law, tort law, all of common law, corporate law, etc.) is the maximization of aggregate wealth (or...)." Is such a statement "merely descriptive"? Explain.

Back 52

Some will claim that such statements are not "normative" but are "merely descriptive." but they will usually be wrong. Such arguments are usually contestable and the only use to which they are usually put is entirely "normative" (e.g. the purpose of the property law is the maximization of aggregate wealth; we should adopt rule X because it maximizes aggregate wealth).

Front 53

EXTRA! When one says that the purpose of some body of law is the maximization of aggregate wealth (or...), what is the meaning of "aggregate wealth"?

Back 53

"Aggregate wealth (etc.)" is - simply but exactly - that which is always and substantially maximized by a Freely Operating Perfect Market (FOPM). That's why, for instance, these folks regard "market imperfections" (or externalities, etc.) as justification for legal action. It is neither the sum of everyone's bank accounts, nor the sum of the value of our assets. Neither is it the aggregate "utility" that utilitarians famously seek to maximize.

Front 54

EXTRA! If one were seeking to maximize aggregate wealth, what would be the "right amount" of accidental injury (or air pollution or contractual breach or crime or poverty or rape)?

Back 54

The amount of accidental injury (or air pollution or contractual breach or crime or poverty or rape) that would be produced (?) in a Freely Operating Perfect Market.

Front 55

EXTRA! To whom and in what degree does a Freely Operating Perfect Market allocate goods?

Back 55

To those who are willing and able to pay.

Front 56

EXTRA! When one says that the purpose of some body of law is the maximization of aggregate wealth, what is the meaning of aggregate wealth?

Back 56

The maximization of aggregate wealth is the maximization of that which is automatically maximized through the operation of a freely operated perfect market.