How do you determine if a state law is substantive?

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corporatelaw87
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How do you determine if a state law is substantive?

Postby corporatelaw87 » Tue Nov 30, 2010 9:38 pm

When there is no direct conflict between federal and state law under Erie, you apply the state law if it's substantive, but what exactly does "substantive" mean. I'm kinda confused. Any help would be great, thanks!

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BarbellDreams
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Re: How do you determine if a state law is substantive?

Postby BarbellDreams » Tue Nov 30, 2010 9:50 pm

Hanna basically lays out that anything "arguably procedural" can be considered procedural. To me substantive means the Byrd test, it has to be bound up in a citizens rights, that a citizen would expect to have that as a personal right. In Walker, if I am the D, it is a substantive law for me to know that once that 2 year mark hits I am safe under the statute of limitations. 2 years hits, I didnt get any service, I am happy that I am off the hook, then 2 days later this damn letter comes and I am thinking "Hell no, you had your chance, my state law is gonna school you!" (or something like that...). Now, if you take a case like Burlington Northern, levying a 10% appellate tax on parties is not substantive, no citizen is going to expect that to be their personal right, it certainly doesn't go against the twin aims of erie, so its procedural.

Yeah, the above is the way I am going about it, it may be entirely wrong and you can call me out on it if it is, but its worked for me on our practice test that I reviewed with the prof.

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onthecusp
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Re: How do you determine if a state law is substantive?

Postby onthecusp » Tue Nov 30, 2010 10:03 pm

If it's not obvious....two prongs of the analysis

Start with Hannah. If there is not some federal directive, than it might be substantive. In other words, if there is not some federal issue that conflicts with state law, you might be dealing with substantive law. Of course if there is a valid federal issue that conflicts with state law, Federal law wins, so long as it does not modify substantive law (Rules Enabling Act)

Prong 2, go to Erie, look at the two goals of Erie.

1. To prevent forum shopping
2. Avoid inequitable administration of the law.

If it's a law that would cause people to flock to federal court to avoid it (such as a statute of limitations), it's substantive in nature and should be enforced. This is consistent with the Outcome Determinant Test (if it will definitively affect the case, you can't ignore it).

Of course you can't forget about the "Balance the Interest" shit, which puts a wrinkle into it, which in so many words, stipulates that the Federal Courts will piss on State law, even if it's substantive, whenever it best serves their interests.

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SeymourShowz
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Re: How do you determine if a state law is substantive?

Postby SeymourShowz » Tue Nov 30, 2010 10:29 pm

BarbellDreams wrote:Hanna basically lays out that anything "arguably procedural" can be considered procedural.


Hanna says that any federal law that is arguably procedural is procedural. I would not apply that test to state laws.

As previously mentioned, the best way to tell if a state law is substantive is to apply the "twin aims" of Erie.

rsx
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Re: How do you determine if a state law is substantive?

Postby rsx » Tue Nov 30, 2010 10:58 pm

SeymourShowz wrote:
BarbellDreams wrote:Hanna basically lays out that anything "arguably procedural" can be considered procedural.


Hanna says that any federal law that is arguably procedural is procedural. I would not apply that test to state laws.

As previously mentioned, the best way to tell if a state law is substantive is to apply the "twin aims" of Erie.


You guys are talking bout two different things. The 'arguably procedural' and Burlington Northern's not "incidentally procedural" tests are concerned the the Rules Enabling Act and avoiding abridging, enlarging, etc a substantive state right. The twin aims of Erie come into play when the law does not conflict/apply/etc with a Fed Rule/statute and you need to figure out if it would apply regardless.

The E&E splits this up as Hanna part 2 and 1, respectively.

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SeymourShowz
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Re: How do you determine if a state law is substantive?

Postby SeymourShowz » Tue Nov 30, 2010 11:01 pm

I was under the impression that the "arguably procedural" test applies to both federal statutes and the federal rules of civil procedure. It's a constitutional question.

Federal Rules, of course, require another step, making sure they don't offend the REA.

Am I wrong?

Edit: no apparently I'm not wrong. I just re-read Hanna.

"For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling with the uncertain area between substance and procedure, are rationally capable of classification as either."

Therefore, statutory rules that regulate the federal courts and the FRCP are constitutional if they are "arguably procedural."
Last edited by SeymourShowz on Wed Dec 01, 2010 9:31 am, edited 2 times in total.

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BarbellDreams
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Re: How do you determine if a state law is substantive?

Postby BarbellDreams » Tue Nov 30, 2010 11:06 pm

rsx wrote:
SeymourShowz wrote:
BarbellDreams wrote:Hanna basically lays out that anything "arguably procedural" can be considered procedural.


Hanna says that any federal law that is arguably procedural is procedural. I would not apply that test to state laws.

As previously mentioned, the best way to tell if a state law is substantive is to apply the "twin aims" of Erie.


You guys are talking bout two different things. The 'arguably procedural' and Burlington Northern's not "incidentally procedural" tests are concerned the the Rules Enabling Act and avoiding abridging, enlarging, etc a substantive state right. The twin aims of Erie come into play when the law does not conflict/apply/etc with a Fed Rule/statute and you need to figure out if it would apply regardless.

The E&E splits this up as Hanna part 2 and 1, respectively.


Well put.

The way I see it, if the two laws are NOT "in collision/conflict", then use Twin aims. If they ARE in conflict, fed law wins if it is arguably procedural, under the scope of the REA and valid.

corporatelaw87
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Re: How do you determine if a state law is substantive?

Postby corporatelaw87 » Tue Nov 30, 2010 11:15 pm

So lets say Fed law x / state law x + y.......They are not in direct conflict because they do contain one of the same component. Then you look for if the state law is substantive (look at twin aims of erie?), if it is apply that. If the federal law changes the outcome, then apply state law. Then as someone previously mentioned, look at the balance of interests btw state and federal (can someone elaborate what to look for?). Does this sound right?

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kswiss
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Re: How do you determine if a state law is substantive?

Postby kswiss » Tue Nov 30, 2010 11:19 pm

From what I've seen on a bunch of practice tests, the way this is tested is almost always with a state RCP and a Fed RCP that are either slightly different or have been constructed in different ways. That way the prof can see if you'll argue that the fed rule is on point and go down the REA analysis, or you'll argue that its a difference in procedural practice between the courts and you can go down the twin aims of erie policy side of the analysis. Or both if possible.

For example...a state that has procedural rules modeled after the FRCP but does not require Twiqbal "plausible" pleading. The Rule 8 statues are exactly the same, but the construction is different and could definitely lead to forum shopping because πs with no solid info would be able to do fishing expeditions in state court but not federal. You can treat it either on the REA side, say the two rules are in direct conflict so the fed rule goes, or go down the policy side saying it is just a difference in judicial practice/construction of the rule. In that case it would lead to forum shopping, and then you could write a good bit about any countervailing federal considerations for raising the pleading standard and whether that outweighs the forum shopping aspect.

corporatelaw87
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Re: How do you determine if a state law is substantive?

Postby corporatelaw87 » Wed Dec 01, 2010 12:18 am

Can someone give examples of State and Federal Interests?

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vamedic03
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Re: How do you determine if a state law is substantive?

Postby vamedic03 » Wed Dec 01, 2010 12:23 am

Relevant section of my outline from last year:


ERIE DOCTRINE
1. 3 Step Analysis
a. IS THERE AN APPLICABLE FEDERAL STATUTE?
i. Congress has the power to regulate procedure within the Federal courts
ii. If Congress enacts a statute regulating federal procedure, then it doesn’t matter if it bumps against the state’s interests or practices
iii. Congress gets to trump state interests
b. IS THERE AN APPLICABLE FEDERAL RULE (Hanna)?
i. Did the parties comply with the terms of the applicable Rules?
ii. Rules Enabling Act (§ 2072) issue?
1. REA delegated authority to create rules of civil procedure to the SCOTUS
2. “a federal rule of civil procedure shall not abridge, enlarge, or modify any substantive right”
iii. Is the rule itself one that might run afoul of a Constitutional provision? Some outside Constitutional limitation of affecting a rule of civil procedure?
iv. NB – All Rules are already vetted by SCOTUS, so unlikely to run afoul of REA or Constitution
v. NB – If there is a rule, then DO NOT:
1. DO NOT EVALUATE OUTCOME DETERMINATIVE
2. DO NOT EVALUATE INTERESTS OF EACH FORUM
vi. IF A RULE MIGHT CONFLICT WITH STATE SUBSTANTIVE LAW, THEN NARROWLY INTERPRET RULE SO THERE IS NO CONFLICT!
c. IS THERE AN APPLICABLE FEDERAL PRACTICE?
i. WHAT ARE THE INTERESTS OF THE STATE (Byrd)?
1. No interest in the state in regulating procedural law
ii. WHAT ARE THE INTERESTS OF THE FEDS (Byrd)?
1. No interest in the feds regulating substantive law
iii. WILL THIS EFFECT THE OUTCOME (Guaranty) EX ANTE?
1. Clearly there will be a difference in outcome between Federal and State courts
a. If there wasn’t an impact on outcome, then lawyers would not litigate the issue
2. Attempted to minimize the possibilities of bias
3. May allow for possibilities in one forum that aren’t possible in the other forum – statute of limitations for example (Guaranty)
iv. WILL THIS EFFECT / ENCOURAGE FORUM SHOPPING?
2. ERIE ONLY APPLIES IN DIVERSITY CASES
a. Determination of whether to apply state or federal law
3. Substantive v. procedural law
a. Substantive Law (STATE) – governs out of court behavior
i. Includes burden of proof
b. Procedural Law (FEDS) – governs in court behavior
4. Doesn’t tell the federal courts how to apply State law, just when to apply State law

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stocksly33
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Re: How do you determine if a state law is substantive?

Postby stocksly33 » Wed Dec 01, 2010 1:37 am

First... some laws are obviously substantive. Ex - a tort. Tort law is generally left up to the state's to determine, and the outcome could vary depending on which state the claim is brought, thus substantive. In these situations, it may not be necessary to go into Hannah and the other tests (unless your prof wants you to anyways).

I'm not expecting a clear-cut substantive issue (like a tort) on the test. If the law is in the gray area between substantive and procedural (it could be argued as either), then you apply the various tests. I've noticed some variations between profs and treatise. Other posters have covered most of the gray-area tests. Use the tests your prof suggested.

Hannah - controlling federal rule is the big one. There's also the policies of Erie test (also from Hannah), the outcome determinative test, the absolute outcome determinative test, and the interest balancing test. There may be others, but those are the only tests I'm aware of.

The E&E has a decent section on Erie and it's aftermath. Might want to start there if you're still confused.

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stocksly33
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Re: How do you determine if a state law is substantive?

Postby stocksly33 » Wed Dec 01, 2010 1:46 am

corporatelaw87 wrote:Can someone give examples of State and Federal Interests?


check out Byrd v blue Ridge Electric Corp.

Re examples... a law governing administrative convenience probably doesn't have much interest either way. A constitutional right like 7th amendment right to trial by jury would probably control interest vs a state law for no trial by jury. I would imagine a property dispute would weigh in favor of state's interest because states' want to adjudicate property matters within their borders vs a federal property law (i haven't taken property yet, so I'm not sure how accurate that is).

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BarbellDreams
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Re: How do you determine if a state law is substantive?

Postby BarbellDreams » Wed Dec 01, 2010 10:27 am

As I am writing my outline I feel like my Hanna test may be bad.

Can anyone put up the actual Hanna test, like the 3-4 questions asked in Hanna?

corporatelaw87
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Re: How do you determine if a state law is substantive?

Postby corporatelaw87 » Thu Dec 02, 2010 12:34 am

So basically you're all saying, in order to see if federal law substantively effect the outcome, use twin aims of erie? My prof taught it that if they don't conflict and state law is substantive, use state law. If using federal law would substantively effect the outcome, use state law (assuming twin aims of erie). Then, you can also look at the balance of interests test.

This leads me to two questions. If your using the balance of interest test, how do you snow which one wins out? Or is that test really just used to show if something is substantive? Also what exactly is inequitable distribution of rights? I assume any type of discrimination would be, but what are other examples? A million thanks to you guys.




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