1L Substantive Law Questions (Get your BLL on ITT) Forum

[skri65]

You only need to do the Hanna factors analysis when there is no federal rule but there are state rules, both procedural, and it's unclear which would apply. Then choose whether to adopt a federal rule or import the state one by analyzing forum shopping.

My last question, promise:

I think I must be missing the big picture here or overthinking things.

You said in your response that you only get to the Hanna factors when there is no federal rule...but then you said you have to determine, through Hanna analysis, whether to adopt a federal rule or import the state one. If there is no federal rule, how can you you possibly "adopt a federal rule"? This seems contradictory.

You've been immensely helpful, I think if I'm able to resolve this question then I'll be all set.

[Nelson]

You only need to do the Hanna factors analysis when there is no federal rule but there are state rules, both procedural, and it's unclear which would apply. Then choose whether to adopt a federal rule or import the state one by analyzing forum shopping.

My last question, promise:

I think I must be missing the big picture here or overthinking things.

You said in your response that you only get to the Hanna factors when there is no federal rule...but then you said you have to determine, through Hanna analysis, whether to adopt a federal rule or import the state one. If there is no federal rule, how can you you possibly "adopt a federal rule"? This seems contradictory.

You've been immensely helpful, I think if I'm able to resolve this question then I'll be all set.

Make federal common law. Courts do this for procedural stuff all the time: your briefs can only be ten thousand words and must be on apricot colored paper. Now the place an exam question would come up is if the court is requiring parties in a state law diversity case to conform to those federal procedures. If the federal rule is apricot paper, probably no big deal. But what if the federal rule is a limit on expert witnesses? Now you've created a federal "procedural" rule that impacts the state substantive right. Does this create forum shopping incentives? Then maybe better for fed ct. to consider using the state standards for number of expert witnesses as the basis for the federal common law.

[skri65]

You only need to do the Hanna factors analysis when there is no federal rule but there are state rules, both procedural, and it's unclear which would apply. Then choose whether to adopt a federal rule or import the state one by analyzing forum shopping.

My last question, promise:

I think I must be missing the big picture here or overthinking things.

You said in your response that you only get to the Hanna factors when there is no federal rule...but then you said you have to determine, through Hanna analysis, whether to adopt a federal rule or import the state one. If there is no federal rule, how can you you possibly "adopt a federal rule"? This seems contradictory.

You've been immensely helpful, I think if I'm able to resolve this question then I'll be all set.

Make federal common law. Courts do this for procedural stuff all the time: your briefs can only be ten thousand words and must be on apricot colored paper. Now the place an exam question would come up is if the court is requiring parties in a state law diversity case to conform to those federal procedures. If the federal rule is apricot paper, probably no big deal. But what if the federal rule is a limit on expert witnesses? Now you've created a federal "procedural" rule that impacts the state substantive right. Does this create forum shopping incentives? Then maybe better for fed ct. to consider using the state standards for number of expert witnesses as the basis for the federal common law.

Thank you very much...very helpful.

[Easy-E]

It might just be too late, and I need to re-read Glannon/my notes in the morning, but I'm fucking lost on Erie. It all makes sense when I read it, but I just can't put it all together. Does anyone have a good flowchart or checklist or something, just so I can try to wrap my head around this. I understand what each case says, I understand the RDA and REA but putting it all together is stumping me. My class only covered Erie, Hanna, and Guaranty, and a lot of stuff I'm finding online seems to include other cases we specifically did not read (Byrd, Gasperini)

I'm guessing the most likely scenario on an exam is going to be some state law conflicting with the FRCP right?

[AMilfordMan]

Do the scrutiny tests apply to both substantive due process and equal protection when a state is dealing with non-citizens? I think I am letting the Chinese Exclusion cases cloud my judgment that if someone is non-citizen, then all bets are off and the government can do as they please. Does that only apply in the context of immigration?

For instance, California can't pass a law that says Chinese (non-US) citizens may neither engage in interstate travel (substantive due process violation) nor...I don't know....eat outdoors (equal protection; strict scrutiny applies).

But the US government could say that no Asian (generally strict scrutiny) female (intermediate scrutiny) may enter the US?

[Nelson]

It might just be too late, and I need to re-read Glannon/my notes in the morning, but I'm fucking lost on Erie. It all makes sense when I read it, but I just can't put it all together. Does anyone have a good flowchart or checklist or something, just so I can try to wrap my head around this. I understand what each case says, I understand the RDA and REA but putting it all together is stumping me. My class only covered Erie, Hanna, and Guaranty, and a lot of stuff I'm finding online seems to include other cases we specifically did not read (Byrd, Gasperini)

I'm guessing the most likely scenario on an exam is going to be some state law conflicting with the FRCP right?

I think a more likely exam question is state law conflicting with federal common law that is procedural. State law conflicting with FRCP means you're within the Sibbach holding and the federal rule will (almost certainly) never fail Sibbach.

[feralinfant]

It might just be too late, and I need to re-read Glannon/my notes in the morning, but I'm fucking lost on Erie. It all makes sense when I read it, but I just can't put it all together. Does anyone have a good flowchart or checklist or something, just so I can try to wrap my head around this. I understand what each case says, I understand the RDA and REA but putting it all together is stumping me. My class only covered Erie, Hanna, and Guaranty, and a lot of stuff I'm finding online seems to include other cases we specifically did not read (Byrd, Gasperini)

I'm guessing the most likely scenario on an exam is going to be some state law conflicting with the FRCP right?

I think a more likely exam question is state law conflicting with federal common law that is procedural. State law conflicting with FRCP means you're within the Sibbach holding and the federal rule will (almost certainly) never fail Sibbach.

You guys didn't cover shady grove or gasperini but the one thing i'll throw out there is that its sometimes not clear if a rule covers something or not. In other words it might not be clear whether you're dealing with a judicial procedural practice, or a procedure set out by the FRCP. In this sense you might have a rule come up (I did on my final).

It might depend on how broadly narrowly you read the rule. The take away from shady grove for example which it doesn't sound like you read, was whether Rule 23 covered class actions in their entirety, or whether they're just how you form a class when a suit is eligible for a class action. The majority though the rule covered it all and it won the day. The dissent thought it didn't conflict with the state law. (the state law in issue barred class actions for a type of claim).

here's what i had for my flowchart (not actually a flow chart but hope it helps).

http://imgur.com/jhnY9uk

[Easy-E]

It might just be too late, and I need to re-read Glannon/my notes in the morning, but I'm fucking lost on Erie. It all makes sense when I read it, but I just can't put it all together. Does anyone have a good flowchart or checklist or something, just so I can try to wrap my head around this. I understand what each case says, I understand the RDA and REA but putting it all together is stumping me. My class only covered Erie, Hanna, and Guaranty, and a lot of stuff I'm finding online seems to include other cases we specifically did not read (Byrd, Gasperini)

I'm guessing the most likely scenario on an exam is going to be some state law conflicting with the FRCP right?

I think a more likely exam question is state law conflicting with federal common law that is procedural. State law conflicting with FRCP means you're within the Sibbach holding and the federal rule will (almost certainly) never fail Sibbach.

Okay, I think I'm just a little confused as far as a procedural federal common law, since my first instinct is that all that should be in the FRCP, but I guess you mean something like "all briefs must be under x pages" or something?

Edit: Re-read the Hanna opinion, this makes sense now. An issue of state law vs FRCP wouldn't be much of a discussion, because to invalidate FRCP is to say the Advisory Committee, Congress, and the Supreme Court all fucked up, right?

[Easy-E]

You guys didn't cover shady grove or gasperini but the one thing i'll throw out there is that its sometimes not clear if a rule covers something or not. In other words it might not be clear whether you're dealing with a judicial procedural practice, or a procedure set out by the FRCP. In this sense you might have a rule come up (I did on my final).

It might depend on how broadly narrowly you read the rule. The take away from shady grove for example which it doesn't sound like you read, was whether Rule 23 covered class actions in their entirety, or whether they're just how you form a class when a suit is eligible for a class action. The majority though the rule covered it all and it won the day. The dissent thought it didn't conflict with the state law. (the state law in issue barred class actions for a type of claim).

here's what i had for my flowchart (not actually a flow chart but hope it helps).

http://imgur.com/jhnY9uk

That's the kind of thing I'm making for my exam "cheat sheet", so that's very helpful, thanks.


I'm getting a little tripped up on "avoidance of inequitable administration of law" aim of Erie, can some just clarify what that actually amounts to?

[feralinfant]

You guys didn't cover shady grove or gasperini but the one thing i'll throw out there is that its sometimes not clear if a rule covers something or not. In other words it might not be clear whether you're dealing with a judicial procedural practice, or a procedure set out by the FRCP. In this sense you might have a rule come up (I did on my final).

It might depend on how broadly narrowly you read the rule. The take away from shady grove for example which it doesn't sound like you read, was whether Rule 23 covered class actions in their entirety, or whether they're just how you form a class when a suit is eligible for a class action. The majority though the rule covered it all and it won the day. The dissent thought it didn't conflict with the state law. (the state law in issue barred class actions for a type of claim).

here's what i had for my flowchart (not actually a flow chart but hope it helps).

http://imgur.com/jhnY9uk

That's the kind of thing I'm making for my exam "cheat sheet", so that's very helpful, thanks.



I'm getting a little tripped up on "avoidance of inequitable administration of law" aim of Erie, can some just clarify what that actually amounts to?

it's just the whole outcome determinative/forum shopping bit. it's inequitable if you you're getting different outcomes in different courts and thats affecting peoples decision making.

[Easy-E]

You guys didn't cover shady grove or gasperini but the one thing i'll throw out there is that its sometimes not clear if a rule covers something or not. In other words it might not be clear whether you're dealing with a judicial procedural practice, or a procedure set out by the FRCP. In this sense you might have a rule come up (I did on my final).

It might depend on how broadly narrowly you read the rule. The take away from shady grove for example which it doesn't sound like you read, was whether Rule 23 covered class actions in their entirety, or whether they're just how you form a class when a suit is eligible for a class action. The majority though the rule covered it all and it won the day. The dissent thought it didn't conflict with the state law. (the state law in issue barred class actions for a type of claim).

here's what i had for my flowchart (not actually a flow chart but hope it helps).

http://imgur.com/jhnY9uk

That's the kind of thing I'm making for my exam "cheat sheet", so that's very helpful, thanks.



I'm getting a little tripped up on "avoidance of inequitable administration of law" aim of Erie, can some just clarify what that actually amounts to?

it's just the whole outcome determinative/forum shopping bit. it's inequitable if you you're getting different outcomes in different courts and thats affecting peoples decision making.

Okay that's what I thought, I was trying to define the two separately, but they speak to the same overall idea. People are going to go to one court system over another to get result they want.

So, here's my understanding so far, I pulled some of this from an older post on the subject, let me know how it's looking. Assuming we have diversity of course...

1. Is there FRCP on point?
-If YES go to #2
-If NO go to #3

2. Is there a conflict between the state law and FRCP?
-If NO, apply both (one could accommodate the other)
-If YES, continue
2a. Is it Constitutional/within the REA (it almost always is)?
-If YES, use FRCP
-If NO, use the state rule (this isn't going to happen though)

3. Is there a conflict between federal common law practice and state law?
-If NO, apply both
-If YES, continue
3a. Does it go against the twin aims of "Erie" and Harlan's concurrence? (my professor wants this as well)
-If YES, use state law
-If NO, use federal law




When we say "state law" in step 3, that means ANY state law right? Statutory or common law?

Anything big I'm missing here? Is there stuff I'm not really fleshing out? Should the RDA be coming into consideration at some step or at least be mentioned? Is this a major oversimplification? Sorry I know this is a ton of shit on Erie, I appreciate any answers.

[chem!]

We just ran through Erie on the last day and it wasn't on my exam, but here is the flowchart we got for it.

[Easy-E]

We just ran through Erie on the last day and it wasn't on my exam, but here is the flowchart we got for it.

Awesome, looks like I have it pretty much together, that includes some stuff we didn't cover but I can hack that right off.


What is the difference between 12(b)(4) and 12(b)(5) motions? I think 12(b)(5) is something that violated 4(e), does 12(b)(5) the equivalent motion for violating 4(a)?

[Swimp]

I feel dumb asking this, but where did the Congressional authority for passing the Civil Rights Act of 1964 come from?

[BVest]

What is the difference between 12(b)(4) and 12(b)(5) motions? I think 12(b)(5) is something that violated 4(e), does 12(b)(5) the equivalent motion for violating 4(a)?

I don't recall the structure of R4, but the difference comes down to problems with the summons (process) such as failure to include a required element (name or cause or whatever) vs problems with the delivery of the summons (service of process).

[BVest]

I feel dumb asking this, but where did the Congressional authority for passing the Civil Rights Act of 1964 come from?

Multiple places (it was a broad bill), but mainly Commerce Clause (see Heart of Atlanta) and 14th Amendment Equal Protection.

[Easy-E]

What is the difference between 12(b)(4) and 12(b)(5) motions? I think 12(b)(5) is something that violated 4(e), does 12(b)(5) the equivalent motion for violating 4(a)?

I don't recall the structure of R4, but the difference comes down to problems with the summons (process) such as failure to include a required element (name or cause or whatever) vs problems with the delivery of the summons (service of process).

I think I'm on point then, thanks.

[djwjddl]

this may be a silly question, but i just want to make sure i have this right. Under the MPC, would these be the appropriate steps to prove attempted rape?

Regardless of whether it's a complete or incomplete attempt: show that it was D's purpose (conscious object) to engage in sexual intercourse with a female not his wife by compelling her to submit by force or by threatening her or another person w/ imminent death...etc. + [whether he took substantial steps]?

I feel that this might not be completely correct. Isn't the part regarding "a female not his wife" an attendant circumstance? If so, wouldn't you only need to prove that D was at minimum reckless w/ regard to such an attendant circumstance? 5.01(1) states "...if acting w/ kind of culpability otherwise required for commission of the crime..." If that's the case, how do you reconcile this with the phrase "under the circumstances as he believes them to be." Even if D were reckless w/ regard to whether the victim was his wife, if the jury believes that D thought that the victim WAS his wife what would happen?

[Swimp]

this may be a silly question, but i just want to make sure i have this right. Under the MPC, would these be the appropriate steps to prove attempted rape?

Regardless of whether it's a complete or incomplete attempt: show that it was D's purpose (conscious object) to engage in sexual intercourse with a female not his wife by compelling her to submit by force or by threatening her or another person w/ imminent death...etc. + [whether he took substantial steps]?

I feel that this might not be completely correct. Isn't the part regarding "a female not his wife" an attendant circumstance? If so, wouldn't you only need to prove that D was at minimum reckless w/ regard to such an attendant circumstance? 5.01(1) states "...if acting w/ kind of culpability otherwise required for commission of the crime..." If that's the case, how do you reconcile this with the phrase "under the circumstances as he believes them to be." Even if D were reckless w/ regard to whether the victim was his wife, if the jury believes that D thought that the victim WAS his wife what would happen?

The thing that occurs me to at first glance is that D's mistaken belief about the identity of his victim doesn't seem to negative the harm. Also, he'd be guilty of another offense even if the circumstances were as he believed them to be, so I don't think he can invoke the mistake defense.

[iworkforlsac]

Question w/r/t Subject Matter Jx. for civ pro:

I was working through one of my prof's past exams and in it I saw:

A plaintiff bringing both state law + fed law claims, with no indication of the amount-in-controversy.
Also, there is complete diversity between the P and D.

Could this be a claim based on 1332 jx (assuming $$ req was met)? 1331? Both? Would appreciate help from someone who knows the answer to this. Thxxx

[Mal Reynolds]

Question w/r/t Subject Matter Jx. for civ pro:

I was working through one of my prof's past exams and in it I saw:

A plaintiff bringing both state law + fed law claims, with no indication of the amount-in-controversy.
Also, there is complete diversity between the P and D.

Could this be a claim based on 1332 jx (assuming $$ req was met)? 1331? Both? Would appreciate help from someone who knows the answer to this. Thxxx

It doesn't really look like there is a whole lot of info to go off of. Did you abridge the question? It probably satisfies 1332, but that's because you assume complete diversity in the question.

For 1331 you need to go go through a constitutional and statutory inquiry, e.g., through each arises under test (Well-pleaded complaint; Holmes Creation: Grable and Sons). There's no other way t parse the state and federal law claims unless you go through each test but you have no info to really do that here.

[iworkforlsac]

Question w/r/t Subject Matter Jx. for civ pro:

I was working through one of my prof's past exams and in it I saw:

A plaintiff bringing both state law + fed law claims, with no indication of the amount-in-controversy.
Also, there is complete diversity between the P and D.

Could this be a claim based on 1332 jx (assuming $$ req was met)? 1331? Both? Would appreciate help from someone who knows the answer to this. Thxxx

It doesn't really look like there is a whole lot of info to go off of. Did you abridge the question? It probably satisfies 1332, but that's because you assume complete diversity in the question.

For 1331 you need to go go through a constitutional and statutory inquiry, e.g., through each arises under test (Well-pleaded complaint; Holmes Creation: Grable and Sons). There's no other way t parse the state and federal law claims unless you go through each test but you have no info to really do that here.

OIC.
In the fact pattern, there is no indication whether P brought the Fed claim pursuant to the "well-pleaded complaint" rule; neither does it give enough to go through the Grable factors for the fed law claim.
It just says P sued D1 and D2 for "conspiracy in violation of federal antitrust law and a MA antitrust statute that provides a parallel cause of action under state law."
(again, assume complete diversity between P and D1/D2)

Enough to elicit a different response?

[Easy-E]

What's the functional difference between summary judgment (R.56) and judgement as a matter of law (R.50)?

[iworkforlsac]

http://www.law.cornell.edu/rules/frcp/rule_50

Not sure if it's helpful but the notes below the rule intermittently talk about Rule 50 w/r/t Rule 56.

[BVest]

Question w/r/t Subject Matter Jx. for civ pro:

I was working through one of my prof's past exams and in it I saw:

A plaintiff bringing both state law + fed law claims, with no indication of the amount-in-controversy.
Also, there is complete diversity between the P and D.

Could this be a claim based on 1332 jx (assuming $$ req was met)? 1331? Both? Would appreciate help from someone who knows the answer to this. Thxxx

It doesn't really look like there is a whole lot of info to go off of. Did you abridge the question? It probably satisfies 1332, but that's because you assume complete diversity in the question.

For 1331 you need to go go through a constitutional and statutory inquiry, e.g., through each arises under test (Well-pleaded complaint; Holmes Creation: Grable and Sons). There's no other way t parse the state and federal law claims unless you go through each test but you have no info to really do that here.

OIC.
In the fact pattern, there is no indication whether P brought the Fed claim pursuant to the "well-pleaded complaint" rule; neither does it give enough to go through the Grable factors for the fed law claim.
It just says P sued D1 and D2 for "conspiracy in violation of federal antitrust law and a MA antitrust statute that provides a parallel cause of action under state law."
(again, assume complete diversity between P and D1/D2)

Enough to elicit a different response?

Not sure if this is what the question is looking for, but with a claim for conspiracy in violation of fed antitrust law it seems like it's begging for you to at least mention Twombly, even if it's just one sentence that if there's not a sufficient A-i-C to uphold the diversity aspect then you'll have to consider whether the complain alleges sufficient specificity of facts to present a plausible claim. I mean, at its non-procedural core, Twombly was a federal antitrust conspiracy claim, no?