First Half Of Wetlaufer Civil Procedure Supplemental Flashcards 4/10/07 Packet.

Front 1

Personal Jurisdiction is alwys available on the basis of:

Back 1

(1) domicile,
(2) incorporation,
(3) consent, or
(4) waiver

Front 2

In addition to domicile, incorporation, consent and waiver, personal jurisdiction may also be based on:

Back 2

The sufficiency of the defendant’s contacts with the forum state (including the presence of the defendant or the subject property within the forum state.)

Front 3

Transient jurisdiction is:

Back 3

Personal jurisdiction exercised by the courts of one state over someone who is not a citizen of that state on the basis that person’s temporary presence within the state.

Front 4

Aaron, a citizen of state A, sells his product to customers in states A, B, and C. While in state B, after making one of his twice-weekly visits to his customers in that state, Aaron is involved in an auto accident with Charlie, a citizen of state C. As a matter of personal jurisdiction, can Charlie sue Aaron in STATE B?

Back 4

Yes. There is specific personal jurisdiction in the state of B because Aaron has significant contacts with the state (coming into the state to do business with its residents) and this cause of action arose out of and was related to one of those contacts.

Front 5

Aaron, a citizen of state A, sells his product to customers in states A, B, and C. While in state B, after making one of his twice-weekly visits to his customers in that state, Aaron is involved in an auto accident with Charlie, a citizen of state C. As a matter of personal jurisdiction, can Charlie sue Aaron in STATE C?

Back 5

Maybe. There is no specific jurisdiction because, while Aaron has contacts with the state of C, Aaron’s cause of action did not arise out of these contacts. Charlie may sue Aaron in the courts of C if but only if his contacts with his customers in the state of C constitute such “continuous and systematic contacts” as to make him subject to general personal jurisdiction in the state of C.

Front 6

Aaron is a citizen of state A, he sells his product to stores in states A, B, and C, and he makes twice-weekly visits to those stores. One weekend he takes a fishing trip to state B and, while in B, he is involved in an auto accident with Bob, a citizen of state B. As a matter of personal jurisdiction, can Aaron sue Bob in STATE A? Explain.

Back 6

No, on the factors set out, Bob’s contacts with state A are insufficient to subject him to personal jurisdiction in that state.

Front 7

Aaron is a citizen of state A, he sells his product to stores in states A, B, and C, and he makes twice-weekly visits to those stores. One weekend he takes a fishing trip to state B and, while in B, he is involved in an auto accident with Bob, a citizen of state B. As a matter of personal jurisdiction, can Bob sue Aaron in STATE B? Explain.

Back 7

Yes. Aaron’s contacts with state B include the fishing trip – and Bob’s claim regarding the auto accident arises from and is related to that contact from the forum state.

Front 8

Alice is a citizen of state A where she owns a store. She advertises and sells her products only in state A but sometimes, through word of mouth recommendations, she gets business from state B. Biff is a citizen of state B who heard about Alice from a friend; called Alice and agreed to purchase one of her products; picked it up at Alice’s store and brought it home. The product then exploded causing great injury. Can Biff secure personal jurisdiction against Alice in STATE B? Explain.

Back 8

No. There is certainly no general subject matter jurisdiction and, under the circumstances, her contact with Biff is insufficient to support specific personal jurisdiction in the state of B.

Front 9

Alice is a citizen of state A where she owns a store. Biff is a citizen of state B. Alice occasionally runs ads in state B and those ads caught the eye of Biff, who drove to Alice’s store, bought a product and took it home. The product exploded, causing great injury. Can Biff secure personal jurisdiction against Alice in the State of B.

Back 9

Almost certainly. Hr her ads, she reached out to attract business in the state of B, the cause of action arose from the contact she initiated, and specific personal jurisdiction almost certainly exists. (Alice’s ads will not support general personal jurisdiction unless they constitute “continuous and systematic’ contacts with the state of B.)

Front 10

Alice is a citizen of state A where she owns a store. Biff is a citizen of state B. Alice sometimes advertises in state B but Biff has testified that he has never seen those ads; that he drove to Alice’s store on the recommendation of a friend, brought a product and took it home. The product exploded and Biff has filed suit in the state of B. What are the best arguments with which Alice might oppose personal jurisdiction in that suit?

Back 10

She might argue that there is no general personal jurisdiction because occasional ads do not constitute “continuous and systematic” contacts with the forum state and that there is to specific personal jurisdiction because all her contact with Biff were in state A and because the cause of action was not related to any of the contacts she initiated with her forum state (i.e. her ads.)

Front 11

Arthur is a citizen of state A and his estranged wife Billy isn’t. He has sued her in state A demanding the return of his dead mother’s record collection and managed to have her served while she was in the state A on a week-long gambling trip. What is the argument with which he would support personal jurisdiction under International Shoe? Under Pennoyer?

Back 11

(1) Under International Shoe, he would argue that personal jurisdiction is warranted by the sufficiency of her contacts with the forum state.
(2) Under Pennoyer, he would argue that personal jurisdiction is warranted by the fact that she was served with process while being present in the forum state.

Front 12

Arthur is a citizen of state A and his estranged wife Billy isn’t. He has sued her in state A demanding the return of his dead mother’s record collection and managed to have her served while in the state on a week-long gambling trip. If Arthur supported personal jurisdiction with an argument made under Pennoyer, what is the argument with which Billy could resist that argument?

Back 12

She would argue that International Shoe and Shaffer have entirely ousted the Pennoyer regime – even in matters involving transient jurisdiction and despite the contrary opinion of the four Justices for whom Justice Scalia wrote in Burnham. (That said, personal jurisdiction may also be unavoidable under International Shoe.)

Front 13

Forum non conveniens is:

Back 13

The common law doctrine by which a court may decline personal jurisdiction if it is a seriously inconvenient forum and if a substantially more convenient forum is available.

Front 14

What is the difference between general and specific jurisdiction?

Back 14

In the law of personal jurisdiction --- and more specifically within the law of International Shoe’s minimum contact analysis – this is the distinction between:
(1) Those situations that, on Wetlaufer’s two-dimensional graph, are above the upper horizontal line; and
(2) those other situations that are above the lower horizontal line and to the right of the vertical line.

Front 15

What is the nature of the legal test that is (was) applied under Pennoyer? What is the question that is (was) asked under Pennoyer?

Back 15

Is the defendant or the defendant’s property present within the territorial sovereignty of the forum state?

Front 16

What is the nature of the legal test that is applied under International Shoe? What is the question that is asked under International Shoe?

Back 16

Are the defendant’s contacts with the forum state such that the state’s exercise of personal jurisdiction would be consistent with the relevant notion of “fair play and substantial justice.”

Front 17

Immediately after the Court’s decision in International Shoe, what is the size of this case? And what, conversely, is the size of Pennoyer?

Back 17

The size of International Shoe was never more contestable than it was immediately after the decision was handed down. Anyone who, at this point in time, said they knew the size of these cases would have been engaging in prophecy as to what the S.C. would do next and would probably have been wrong.

Front 18

In what way can the Court’s decision in Shaffer v. Heitner be said to have altered the “size” of International She?

Back 18

If Shafer v. Heitner altered the “size” of International Shoe, it did so by expanding its domain from “in personam” jurisdiction to all of personal jurisdiction, including both “in personam” and “in rem” jurisdiction.

Front 19

If International Shoe could fairly be said to have some particular “size” after the Court’s decision in Shaffer v. Heitner, who is responsible for its “size” at that particular point in time?

Back 19

Responsibility for the size of International Shoe must be assigned jointly to (1) the International Shoe Court and
(2)The Shaffer Court --- and it might be fair to assign the greater share of the responsibility to the Shaffer Court. I would say that the International Shoe Court created (or left open) the possibility of this interpretation and that the Shaffer Court made it law.

Front 20

In Shaffer v. Heitner, the majority announced that “The International Shoe court believed that the standard it was setting forth governed actions against natural persons as well as corporations, and we see no reason to disagree.” Is it making an argument? If so, what type?

Back 20

It is making an argument from what I will call the actual historical intentions of the International Shoe Court. Thus the Shaffer Court is asserting that the International Shoe Court meant International Shoe to be quite large—and thus the Shaffer Court then cites the earlier Court’s intention as a reason to conclude that the earlier case is and ought to be interpreted as being quite large.

Front 21

In Shaffer v. Heitner (1977), the defendant acknowledged that cases involving “in personam” jurisdiction were governed by International Shoe but argued that those involving “in rem” jurisdiction were still controlled by Pennoyer. The Court explained that both forms of jurisdiction equally involved power over the interests of a person. What kind of argument was being made?

Back 21

The Court was arguing the distinction between “in personam” and “in rem” jurisdiction was a “distinction without a difference.” There being no difference between these two categories, there was no justification for these categories being controlled by different rules. Then of course, in an argument that is analytically separate (an not here cited), the Court decided that the rule in International Shoe should control both situations.

Front 22

In his dissent in WWVW v. Woodson (98), Justice Brennan explains that he “would…strip the defendant of an unjustified veto power over certain very appropriate for a – a power the defendant justifiably enjoyed long ago when communication and travel over long distances were slow and unpredictable and when notion of state sovereignty were impractical and exaggerated. But … that is not today’s world.” (at 104) What is the nature of he argument he is making?

Back 22

He is arguing that personal jurisdiction ought now exist in circumstances in which it did not exist in the past --- and he is making an argument “from” changed circumstances (or perhaps more specifically changed logistic circumstances and on an improved understanding of state sovereignty.

Front 23

In his dissent in WWVW v. Woodson (98), Justice Brennan observes that the majority opinion “suggestions that the defendant ought to be subject to a State’s jurisdiction only if he has contacts with the State ‘such that he should reasonably anticipate being haled into court there.’” He objects that the argument “begs the question.” (104, n. 18) Explain.

Back 23

He says that “ defendant cannot know if his actions will subject him to jurisdiction in another State until we have declared what the law of jurisdiction is…” He says the majority is arguing that :
(1) A defendant is subject to personal jurisdiction but only if he reasonably anticipated being hauled into court in the forum state;
(2) This defendant did not reasonably anticipate…;
(3) Therefore this defendant is not subject to personal jurisdiction in the forum state.
But, says Brennan, the truth of the premises (i.e., what constitutes a reasonable anticipation) depends on the truth of the conclusion and the argument is therefore circular.

Front 24

In Burnham, Justice Scalia makes an argument from history when he asserts “among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.” In his concurrence, Justice Brennan responds with two quite different counter arguments. Identify those counter arguments.

Back 24

(1) Justice Brennan argues that:
(1) history ought not to control; and
(2) Justice Scalia has gotten his history wrong.

History ought not control because “all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process” and because “traditional notions of fair play and substantial justice’ can be readily offered by the perpetuation of ancient forms that are no longer justifies as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.”

He also argues that Justice Scalia’s history is wrong, that the rule in question was a stranger to the common law, and it was only weakly implanted into 19th century American law.

Front 25

In Burnham, Justice Scalia makes an argument from history (that American courts have always had jurisdiction over nonresidents who are physically present in the forum state) to which Justice Brennan has offered the counter-argument that Justice Scalia’s argument is historically wrong. What is the counter-counter-argument with which Justice Scalia responds?

Back 25

That Justice Story “believed the principle, which he traced to Roman origins, to be firmly ground in English tradition” and that “accurate or not,….one must conclude that Story’s understanding of the law was shared by American courts at the crucial time for present purposes: 1868, when the 14th Amendment was adopted.

Front 26

When Justice Scalia, in Burnham v. Superior Court (1990) describes Justice Brennan’s application of International Shoe as a “standard of continuing-American-tradition-plus-innate-fairness” and asserts that the standard is inherently subjective, causes every case to present a different litigable issue, and is “only a totality of the circumstances test,” what is the nature of the argument that Scalia is making?

Back 26

(1) Justice Scalia is arguing that Brennan’s application of International Shoe ought to be rejected because the “rule” Brennan ends up applying does not constitute a proper rule of law.

Front 27

An example of a counter-argument against someone else’s argument from history in which the counter- argument asserted that the first argument got its history wrong is:

Back 27

Brennan’s counter-argument in Burnham that Scalia has gotten his history all wrong –as well as the similar counter-counter argument that Scalia directs against Brennan.

Front 28

An example of a counter-argument against someone else’s argument from history and in which it is asserted that history is or ought not be decisive (even if it is good history) –as found in Shaffer v. Heitner (1977) --- is

Back 28

In Shaffer v. Heitner (1977), the Court acknowledged the long history of treating personal jurisdiction in “in personam” cases as controlled by the presence of the property in the forum state but said that was not decisive. “Traditional notions of fair play and substantial justice” can be as readily offered by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.

Front 29

My (Wetlaufer’s) favorite example of an argument from a legal fiction, drawn from the law of personal jurisdiction is:

Back 29

Hess v. Pawloski (1927) (pg. 72), where the Court sustained personal jurisdiction against a nonresident defendant –under Pennoyer – on the ground that driving on the roads of Massachusetts constituted, without regard to actual facts, consent to being sued in the state.

Front 30

My favorite example of an argument that someone else’s asserted distinction is a “distinction without a difference,” this one drawn from Shaffer v. Heitner (1977) is

Back 30

The defendant admitted that the cases involving “in personam” jurisdiction were governed by International Shoe but claimed that those involving “in rem” jurisdiction were still controlled by Pennoyer. The Court argued that the distinction between “in personam” and “in rem” was a “distinction without a difference” because both equally involved jurisdiction over the interests of a person. There being no difference, they should both be controlled by the same rule –which, by separate argument, the Court tells us is International Shoe.

Front 31

My favorite real-world example of an argument in the form “X cannot account for Y” is (from the personal jurisdiction chapter.)

Back 31

In Shaffer v. Heitner (1977), the Court rejected the claim that Delaware’s sequestration statute evidenced the state’s interest in supervising the directors of Delaware’s corporations – in part because this proposed explanation could not account for the fact that the state law was drafted not to apply to the directors of Delaware corporations but to apply to any and all property within the state. If this had been its purpose, the statue would be been both “under inclusive” and “over inclusive.”

Front 32

In International Shoe (1945), what is the argument by which the majority attacks someone else’s argument for “begging the question?”

Back 32

A corporation is not a real person and its “presence” within a state can only be manifest by the activities of its agents. To say that a corporation is “present” within a state for purposes of the due process requirements related to personal jurisdiction within a state is to “beg the question to be decided” because the term “present” is used “merely to symbolize those activities of the corporation’s agent within the state which courts will deem to be sufficient to satisfy the demands of due process.” And “those demands may be met by such contacts…as…make it reasonable” to require the corporation to defend itself within the courts of that state. (78-79). Let’s stop fooling around with “presence’ and just ask whether contacts are sufficient.

Front 33

My favorite example of an argument from what is said to be – or not to be – a “proper rule of law,” is this one made by Justice Scalia (joined by two others) in Burnham v. Superior Court (1990) is

Back 33

Justice Brenan’s understanding of International Shoe standard, described as a “standard of continuing American tradition plus innate fairness,” is said to be unacceptable because of its inherent “subjectivity” (and the excessive discretion it give to judges), because it would mean that “every different case will present a different litigable issue,” and because “Brennan’s approach does not establish a rule of law at all, but only a “totality of the circumstances” test….”

Front 34

Does the fact that a case involves an important question of federal law bring it within the subject matter jurisdiction of the federal district courts?

Back 34

Without more, it does not – because the well pleaded complaint rule requires that the plaintiff’s cause of action arise under federal law.

Front 35

In the well pleaded complaint rule part of the law of federal pleading, personal jurisdiction, or subject matter jurisdiction?

Back 35

It is part of the law of subject matter jurisdiction and, more specifically, of that portion of subject matter jurisdiction that involves federal question jurisdiction.

Front 36

What is the case in which the well-pleaded complaint rule is expressed?

Back 36

Louisville v. Mottley (I) (1908) (page 182)

Front 37

For purposes of satisfying the jurisdictional amount in a diversity action, may a single plaintiff aggregate sub-minimum claims against a single defendant?

Back 37

Always – even if those claims are wholly unrelated and present completely different questions of law and fact.

Front 38

For purposes of satisfying the jurisdictional amount in a diversity action, (1) may a single plaintiff aggregate claims against multiple defendants – or (2) may multiple plaintiff’s aggregate claims against a single defendant?

Back 38

(1)and (2). No – even if one of the claims exceeds the statutory minimum and even if the claims present identical questions of law and fact.

(The only exception to this wildly inefficient rule is that claims may be “aggregated” when they constitute a single undivided interest in the subject of the litigation (e.g., a suit on a contract to sell land that multiple defendants jointly own – but if it really involves a single undivided interest we might conclude the claim is already aggregated.

Front 39

What is the statue or rule controlling supplemental jurisdiction?

Back 39

28 U.S.C. 1367

Front 40

What is the function of 28 U.S.C. 1367(a)? What does it do?

Back 40

Section 1367(a) conditionally grants supplemental jurisdiction for claims over which the federal courts would otherwise have no subject matter jurisdiction.

Front 41

What is the scope of §1367(a)? Without reference to the other sections, when does (a) do whatever it does?

Back 41

The grant of supplemental jurisdiction applies where the otherwise non-jurisdictional claim is related to (in some cases case or controversy = CNOF = SAOF = logically related ) a claim over which the federal court already had subject matter jurisdiction.

Front 42

What is the function of 28 U.S.C. 1367(b)? What does it do?

Back 42

Section 1367(b) creates an exception to the grant of supplemental jurisdiction found in (a).

Front 43

What is the scope of §1367(b)? Without reference to the other sections, when does (a) do whatever it does?

Back 43

The exception/exclusion created under (b) applies to most if not all claims that might be asserted by a plaintiff in an action in which subject matter jurisdiction rests solely on diversity. (This may make sense because the plaintiff not the defendant has chosen to be in federal court. And it may prevent the plaintiff from circumventing the requirement of complete diversity.)

Front 44

What is the function of 28 U.S.C. 1367(c)? What does it do?

Back 44

Section 1367(c) grants the federal court the discretion to decline to approve supplemental jurisdiction.

Front 45

What is the scope of §1367(c)? Without reference to the other sections, when does (a) do whatever it does?

Back 45

Section 1367 (c) applies to cases in which supplemental jurisdiction is granted by 1367(a) and which is not withdrawn in (b), and it still seems sensible not to approve it.

Front 46

Is supplemental jurisdiction generally more available in cases involving federal questions than in cases involving diversity? In cases involving diversity than in cases involving federal questions? Explain.

Back 46

Supplemental jurisdiction is generally more available in cases involving federal questions than in cases involving diversity. This follows from the fact that the statutory exceptions to supplemental jurisdiction (28 U.S.C. 1367(b)) apply to cases in which jurisdiction is founded only on diversity jurisdiction and not to cases in which jurisdiction is founded, either in whole or party on federal question jurisdiction.

Front 47

Is supplemental jurisdiction generally more available to the plaintiff than the defendant or more to the defendant rather than the plaintiff?

Back 47

Supplemental jurisdiction is generally more available to the defendant than to the plaintiff. This follows from the fact that the statutory exceptions to supplement jurisdiction (28 U.S.C. 1367(b)) apply to claims asserted by the plaintiffs but not to claims asserted by the defendants.

Front 48

Alice is a citizen of state A where she owns a store. Biff is a citizen of state B. Alice runs ads in state B and those ads caught the eye of Biff, who drove to Alice’s store, bought a product and took it home. The product exploded and Biff wants to bring suit in tort. On these facts, is there subject matter jurisdiction in a federal court in the state of A? The state of B? The state of C? Explain.

Back 48

If the damages sought exceed $75,000, there is subject matter jurisdiction (diversity of jurisdiction) in all three states. The mater of personal jurisdiction, is of course, another matter.

Front 49

Alice is a citizen of state A where she owns a store. Biff is a citizen of state B. Alice runs ads in state B and those ads caught the eye of Biff, who drove to Alice’s store, bought a product and took it home. The product exploded, injuring Biff’s arm and the sleeve of his coat, and Biff has sued in tort. The complaint alleges that the injury to the arm was $74,500 and that the coat was worth $600. Is there subject matter jurisdiction in federal district court? Explain.

Back 49

Yes. There is diversity of citizenship; for purposes of diversity jurisdiction, the plaintiff is permitted to aggregate these claims; and taken together they exceed the jurisdictional amount of $75,000.

Front 50

Alice is a citizen of state A where she owns a store. Biff is a citizen of state B. Alice runs ads in state B and those ads caught the eye of Biff, who drove to Alice’s store, bought a product and took it home. The product exploded, injuring Biff’s arm and the sleeve of his coat, and Biff has sued in tort. The complaint alleges that the injury to the arm was $74,500 and that the coat was worth $600 – but Alice has filed an affidavit attesting that this coat is available at a local sidewalk sale for $200. Is there subject matter jurisdiction in federal district court? Explain.

Back 50

Yes. There is diversity of citizenship; for purposes of diversity jurisdiction, the plaintiff is permitted to aggregate these claims; and taken together they exceed the jurisdictional amount of $75,000. As to the amount in controversy, the plaintiff’s allegations control unless “from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed.” See casebook at 242.

Front 51

Plaintiff has two non-federal claims against a single defendant. The parties are citizens of different states. One of the plaintiff’s claims satisfies the $75,000 jurisdictional amount by the other does not. These claims are completely unrelated. Is supplemental jurisdiction necessary? If necessary, is it available?

Back 51

Supplemental jurisdiction is unnecessary because the rule of aggregation in diversity permits the plaintiff to aggregate these two claims and the jurisdictional amount is therefore satisfied with respect to both claims.

Front 52

Plaintiff has related non-federal claims against two different defendants, both for $80,000. There is diversity jurisdiction over one of these claims but not the other. The claims do not involve a single undivided interest. Is supplemental jurisdiction necessary? If it is necessary, is it available?

Back 52

These case lacks “complete diversity” and thus there is no diversity jurisdiction for either claim. Even if there were a jurisdictional “anchor” claim (because complete diversity is lacking there is not), supplemental jurisdiction would be expressly barred by 1367(b) because the anchor claim is “solely diversity” and the otherwise non-jurisdictional claim is “by a plaintiff” and against a person made a party “under Rule…20.”

Front 53

Plaintiff has a non-federal diversity claim against a single defendant and there is diversity jurisdiction. Defendant seeks to assert a related counterclaim worth $40,000. Is supplemental jurisdiction necessary? If necessary, is it available?

Back 53

This problem is not solved by the rules of aggregation and, in that sense supplemental jurisdiction is necessary. Supplemental jurisdiction is conditionally permitted by 1367(a) (assuming the “related” claim would form part of the “same case or controversy”); it is not barred by 1367(b) (which does not apply to claims asserted by defendants); and –subject to the court’s discretion under 1367(c) – it is therefore available.

Front 54

Plaintiff (a citizen of state A) has a claim against a single defendant (a citizen of state B) and the defendant seeks to implead a third-party defendant (a citizen of state B). Al claims are non-federal and exceed $75,000. What is the problem? Is supplemental jurisdiction necessary? If it is necessary, is it available?

Back 54

The problem is that there is no diversity of citizenship on the Impleader claim. This problem is not solved by the rules of aggregation, and in that sense supplemental jurisdiction is necessary. Supplemental jurisdiction is conditionally permitted by 1367(a) (assuming the “related” claim would form part of the “same case or controversy”); it is not barred by 1367(b) (which does not apply to claims asserted by defendants); and –subject to the court’s discretion under 1367(c) – it is therefore available.

Front 55

Plaintiff (a citizen of state A) has a non-federal diversity claim against a single defendant (a citizen of state B); the defendant has impleaded a third-party defendant (a citizen of state A); and plaintiff seeks to assert a related claim against the third-arty defendant. Is supplemental jurisdiction necessary? If it is necessary is it available?

Back 55

There is no diversity jurisdiction on the plaintiff’s claim against the Impleader defendant, and aggregation doesn’t help. Supplemental jurisdiction is not available. It is conditionally permitted by 1367(a) (assuming the “related” claim would form part of the “same case or controversy”); but it is then expressly barred by 1367(b) (as claim by plaintiff against a person made a party “under Rule 14).

Front 56

Extra! My favorite argument from the (asserted) meaning of a text in light of what another decision-maker (usually Congress) might have done but didn’t do is

Back 56

Ankenbrandt v. Richards (1992), where the S.C. affirmed an 1858 decision holding that cases involving divorce, alimony and child support fall outside the scope of diversity jurisdiction, even when the parties are citizens of different states and the terms of the diversity statue are fully satisfied. Among its argument was the claim that Congress had ample opportunity to reverse the earlier decision and hadn’t done so.

Front 57

The statute that is differently interpreted in Swift and Erie is

Back 57

The Rules of Decision Act.

Front 58

The difference between Swift and Erie in their reading of the Rules of Decision Act is….

Back 58

The word “law” which in Swift was read to refer to the positive (e.g. statutory) but not judge-made law of a state and in Erie was read to refer to the positive (e.g. statutory) and the judge-made law of the state.

Front 59

After Hanna v. Stewart, the first seven questions Wetlaufer would ask when dealing with an Erie question are:

Back 59

(1) Is the state rule in question substantive in the fullest sense (Erie?)- Apply state rule.
(2) Does the statute or federal rule somehow not apply, in which case there is no Erie problem to be solved? -- Apply the one rule that applies.
(3) Is the federal rule a (constitutional) statute (Stewart)? -- Apply the federal rule.
(4) Is the federal rule a “Federal Rule” (properly within the Rules Enabling Act) (Hanna)? --- Apply the federal rule.
(5) If not 1-4, do all Byrd factors point toward the federal rule (F=H; S=L; POD = L)? (After Hanna, POD must be properly understood)? -- Apply the federal rule.
(6) If not 1-5, do all the Byrd factors point toward the state rule (S=H, F=H; POD = H) – Apply the state rule.
(7) If not 1-6, is the POD very high? – Byrd implies the state rule applies.
(8) Is outcome determinacy, properly understood, high or certain?
(9) Is outcome determinacy high or certain but of the wrong kind?

Front 60

How much do I dislike civil procedure?

Back 60

VERY MUCH!!!