Final Examination Feedback Memorandum
Procedure for Examination Review. I will discuss exams individually with students, by appointment, beginning with the 3rd week of the Fall Semester. Review will commence after Tuesday, September 7, 1999. Exams and the Feedback Memorandum will be available for pickup from my secretary beginning on that date. Examination review will take place subject to the following procedure:
1) You must obtain and review a copy of my feedback memorandum, which will be available from my secretary and on my web page.
2) You must get your examination from my secretary and review it.
3) After you review the documents, you may schedule an appointment with me.
4) Students who received grades of C+ or lower will have priority in scheduling exam review.
Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.
The Exam was graded on a 1200-point scale.
With these general comments in mind, you can now review my specific discussion of each question:
Part I: Multiple Choice Questions (40%) (480 Points)
COMMENT: The average student got 7 out of 8 answers correct, therefore, the Multiple Choice section did not prove to be very difficult at all. On the other hand, if you blew it, it was costly, because this is where the only "easy" points were to be found in this exam.
HOWEVER, on second thought, the multiple choice section might have proved very difficult indeed if you dedicated so much time to getting the answers right, that you did not have enough time to answer the essay questions. This is a time-management issue that I suspect cost many of you points in the essays. So, getting points in the MC section, might have come at the cost of points in the essay section.
1. William Jefferson Clinton, President of the United States, has been held in contempt of court by Judge Susan Webber Wright, of the United States District Court for the Eastern District of Arkansas. In her opinion, she found that he had lied during his deposition in the Paula Jones case, taken in her presence in Washington, D.C. She held that he had disobeyed her order to participate in the deposition and to answer truthfully therein. She imposed on him a monetary sanction in the amount of the cost of her travel to Washington, and an award in the amount of the attorneys fees for Mrs. Jones' lawyers preparation for and participation in the deposition. Assuming that the settlement of the underlying action did not deprive the court of authority to impose sanctions under the rules, what is the most appropriate basis in the Federal Rules of Civil Procedure for these sanctions?
ANSWER: "C," Rule 37(b)(2)(D) is the most appropriate basis under the Rules, among the choices given. There is a possible argument that the case was not pending before the court after the settlement, therefore, the assumptions I instructed you to make were vitally important. The issue raised in the modified question from hell from last year, i.e., monetary vs. non-monetary sanctions, is saved by the concluding language of Rule 37(b)(2), which modifies all subsections of 37(b)(2), regarding the imposition of monetary awards in addition to or instead of the other sanctions listed in 37(b)(2). As to "A" Rule 26(g) is more appropriate than Rule 11, but still not specific enough, since the judge chose to use the power of contempt for violation of an order, not the certification of discovery answers required by 26(g). Rule 11 (alternative "B") does not apply because of the express language of Rule 11(d). Section 1927 and the court's inherent powers (alternative "D") may be sources of power to impose sanctions, but that was not the question, the question was the basis in the Federal Rules of Civil Procedure.
2. In 1996, Ms. Irina Rudzewicz, a citizen of Poland, is admitted for permanent residence in the United States. She begins to teach economics at Florida International University and resides in Coral Gables, Florida. She works out at the Olympic Gym in Coral Gables. In May of 1998, she discovers that the Gym management, which was trying to catch a thief, had videotaped all persons changing clothes in the women's locker room. A police investigation showed that the gym's security guards were stealing things from the lockers, and were selling copies of the security videotapes over the internet. Ms. Rudzewicz's nephew, who lives in Krakow, Poland, downloaded a copy of a video depicting her. After giving her son a severe tongue-lashing for looking at this particular web site, his mother notified Ms. Rudzewicz about the video. She files an invasion of privacy suit, based only on the laws of Florida, in the United States District Court for the Southern District of Florida against Olympic Gyms, Inc., a California Corporation with its principal place of business in West Palm Beach, Florida. She claims in excess of $600,000.00 in damages. The company has moved to dismiss for lack of subject-matter jurisdiction. Should the court dismiss the case on that basis?
Answer is "A". An alien is suing a U.S. citizen and the claim exceeds $75,000.00, but the last sentence of 1332(a) covers the special case of permanent resident aliens, and would deem her to be a citizen of Florida in this case. The corporation is a citizen of both California and Florida which thus deprives the court of diversity jurisdiction, the only one that applies to state law claims. B is incorrect most simply because that is not the claim as pleaded. C is an incorrect statement of 1332(c)(1), a corporation is a citizen of both its place of incorporation and its principal place of business. D is incorrect because of the amended 1332(a) language.
3. During this past Spring Break, Jeff Johnson, a graduating High School Senior, who was then a citizen of Alabama, was stopped by officers of the United States Border Patrol when he returned to Laredo, Texas, from a night out in Laredo, Mexico. The officers arrested Mr. Johnson for public drunkenness, and left him handcuffed the back of their official vehicle, an armored van. Mr. Johnson died in the van after drowning in his own vomit. The officers involved are citizens of Texas and reside, respectively, in LaSalle and McMullen counties in Texas. They have no contacts with Alabama. Mr. Johnson's parents, Jeffrey and Mary Johnson, wish to file suit against the two officers under the Federal Tort Claims Act. The Johnsons are citizens of Alabama and residents of Tuscaloosa, Alabama. Assuming that claims may be filed against the officers under the Act, that these claims would be both reasonable and substantial, and that the two officers will not waive any defenses available to them, in which court may this case be filed?
Answer: B. There is a federal question to give the court original subject-matter jurisdiction, the defendants are all residents of Texas, and are subject to PJ there, and venue is proper under 1391(e)(1) or (2) since the officers are residents of this District (28 USC ß 124(b)(3)). "A" is incorrect because of the "Only," there might be concurrent Federal and State jurisdiction, not exclusive state jurisdiction. Because we need Subject-Matter Jurisdiction, Personal Jurisdiction and venue, the case cannot be filed in any district (the requirement of venue, PJ and SMJ is indicated in the fact-pattern by the non-waiver of defenses). The District of Alabama, the residence of Plaintiffs, is a proper basis for venue under 1391(e)(3), but there would be no personal jurisdiction over the officers, who are residents of Texas and have no contacts with Alabama.
4. A hurricane destroyed the boat owned by George Costanza, a resident of St. Petersburg, Florida. Lloyds of New York Insurance Company provides Costanza's boat-owner's policy. Because of the storm surge, Costanza's boat landed on the house owned by one Jerry Seinfeld, causing property damage in excess of $150.000.00. The day after the hurricane, as everyone was assessing the damages, Cosmo Cramer, an agent for Lloyds was took a statement from Mr. Seinfeld, who said he was going to sue Mr. Costanza to recover his damages. Mr. Cramer wrote down what Mr. Seinfeld said and Mr. Seinfeld, after reading it, signed the document. After that, Mr. Cramer, in reasonable anticipation of Mr. Seinfeld's suit, also took similar statements from two neighbors, Albert Martin, and June Cleaver. Both Mr. Martin and Ms. Cleaver described how they saw the storm surge from their homes overlooking the shore, and how the boat was carried there by the water and wind and smashed into Seinfeld's home. They signed Mr. Cramer's transcription of what they said. Mr. Seinfeld files a suit in Federal Court against Mr. Costanza. During discovery, Mr. Seinfeld requests copies of the statements given by his neighbors, through a Request for Production of Documents. Mr. Seinfeld admits that he can get substantially the same thing by deposing Mr. Martin and Ms. Cleaver, who are willing to talk to him, but he still wants the statements. The insurance company is providing Mr. Costanza with his defense, and has turned over to his defense team the statements taken by Mr. Cramer. Can Mr. Costanza successfully refuse to produce the requested documents?
Answer: A, because work-product applies, and no showing of necessity has been made and none of the exemptions are applicable. (I also added the word "successfully" in anticipation of the argument that any privilege can be raised until the court rules on it.) Note that work-product applies under 26(b)(3) to statements prepared for the party's insurance agent, even if the insurance company is not a party to the suit, thus "B" is incorrect. "C" is incorrect because while the witnesses are indeed entitled to a copy of their statements, even if the privilege applied, the express language of FRCP 26(b)(3) paragraph 2 contemplates that the witnesses are the requesting party, which is not the case here. D is incorrect because the documents are under Mr. Costanza's control.
5. Ms. Ellen Morgan has filed a suit against Dr. John D. Bombay and his employer Humana Hospital, Inc., because he left his Rolex watch inside Ms. Morgan's thoracic cavity during an appendix operation. Ms. Morgan is a citizen of California, Dr. Bombay is a citizen of Oregon and Humana is incorporated in Washington State and has its Principal Place of Business in West Palm Beach, Florida. The case was filed in the Eastern District of Washington because the relevant facts occurred at Doctor's Hospital in Walla Walla, which is owned and operated by Humana. The claim exceeds $75,000.00, exclusive of costs and interest, and only diversity jurisdiction is claimed over this malpractice tort suit. The plaintiff wants to establish that the doctor had been flown in from his home hospital in Oregon to cover for some striking interns and had been working for 72 hrs., with only 4 hours of sleep. She wants a certification indicating that Dr. Bombay is or is not authorized to practice medicine in Washington State. This information is only available from the Washington State Board of Physicians, an independent private association in the State of Washington. What is correct way to compel the Board to provide her with access to these records under the Federal Rules of Civil Procedure?
Answer: C is correct because the board is not a party and the records are within its control, and the one discovery device available against non-parties in this situation is a deposition under Rule 30, and the subpoena duces tecum under Rule 45(a)(1)(C). A is incorrect because a request for production compels a party to produce documents under its control. B is incorrect because a request for production of documents is most correct procedural device in this case, even if courts are not always all that neat about the distinction in practice between Rule 34 and Rule 30 Interrogatories (see, e.g., Hickman v. Taylor, cb. p. 349, bottom). As to D, you could argue that Dr. Bombay has control over or can request these records, but that is certainly not the way to compel the Board to provide you with access under the rules.
6. Bill Christian has sued Fred Smith in the U.S. District Court for the Northern District of California. Fourteen days after being served with process, Mr. Smith filed a motion to dismiss for insufficiency of process. The court denied this motion. Seven days after the notice of the court's order, Mr. Smith filed his answer. Fifteen days after filing the answer, Mr. Smith files an Amended answer raising, for the first time, the defense of lack of subject-matter jurisdiction, which was available when the motion mentioned above was filed. Should the Court consider the jurisdictional objection?
Answer: D, subject-matter jurisdiction can be raised at any time, in any manner, under 12(h)(3). D is therefore a better alternative to B, since the timeliness of the amendment is simply irrelevant. C is incorrect because 12(h)(3) clearly establishes that this defense is not waived. A is incorrect because the timeliness of the amendment is irrelevant.
7. Buffy Summers, a citizen of California who resides in the city of Sunnyvale, a small city just South of San Francisco, in Santa Clara County, California, has been sued by Pierre Lestat, a citizen of France, who resides in the city of Paris, in that country. Me. Lestat was spending his vacation in California and was staying in San Francisco. He took a night-trip to Sunnyvale, when, while he was minding his own business, Ms. Summers attempted to stab him through the heart with a wooden stake. She missed, but Me. Lestat feared for his life and files suit under California law, which allows very substantial damage awards based on fear resulting from intentional conduct, even without actual physical harm. He claims jurisdiction based only on section 1332 of Title 28, and claims damages in excess of $300,000.00, exclusive of costs and interest. The suit is filed in the United States District Court for the Eastern District of California. Ms. Summers moves for dismissal for lack of subject-matter jurisdiction, lack of personal jurisdiction and lack of venue. Should the court dismiss?
ANSWER: B. There is proper 1332(a)(2) alienage jurisdiction, with the claim meeting the jurisdictional amount, and personal jurisdiction in California is present based on Summers' California residence, but she lives and the acts occurred in Sunnyvale (yes I know, it's Sunnydale on the show, but Sunnyvale is actually on the map) which is in Santa Clara county, which is in the Northern District of California (28 USC ß 84(a)). The venue defect makes A incorrect. C is just not a true statement of the law. D was to catch a misreading of section 1391(d), an alien defendant may be sued in any District pursuant to 1391(d), but not sue, so the Northern District is fine. B is incorrect because venue is proper under 1391(d), otherwise, it would probably have to be filed in the Middle District under 1391(a). The conclusion in C is simply not true, foreigners can be plaintiffs or defendants in alienage jurisdiction. D is just an incorrect statement of the basis of original jurisdiction.
8. José Cruz, Juan Cepeda, Roberto Clemente and Iván Rodríguez, all citizens of New York, file suit in the U.S. District Court for the Northern District of Georgia, against Phil Niekro, a citizen of Georgia who resides in Atlanta. They allege that jurisdiction over their claims is based exclusively on diversity. The complaint alleges that Mr. Niekro negligently caused a car accident in which he ran over expensive Harley Davidson motorcycles belonging to each of the Plaintiffs. The accident caused only property damage, because the plaintiffs were sitting inside the Baseball Fantasy Bar and Grill on Peachtree Street in Atlanta, when Mr. Niekro plowed over their bikes. The complaint claims damages, exclusive of costs and interest, as follows: Mr. Cruz claims $50,000.00, Mr. Cepeda claims $37,500.00, Mr. Clemente claims $65,000.00 and Mr. Rodríguez claims $42,500.00. Mr. Niekro files a motion to dismiss the complaint for lack of subject-matter jurisdiction. What should the court do?
Answer: D. Claims by each plaintiff against each defendant must add up to more than $75,000.00, which is clearly not the case here. "A" is incorrect because while joinder would indeed be proper under rule 20(a), that is not a source of subject-matter jurisdiction. "B" is wrong because there is venue based both on Mr. Niekro's residence and on the occurrence of the accident, and, more fundamentally, because that was not the motion that the court was considering. "C" is incorrect because a single Plaintiff can aggregate all claims against the same party under Rule 18(a) and for purposes of meeting the jurisdictional amount. But here we have multiple plaintiffs.
Part II: essay questions (60% of your Score) (720 points)
COMMENT: The average raw score for Essay 1 was 40.4% and for Essay 2, 32.8%. This is where points were hard to come by. As I mentioned above, time-management might have been a factor in many of the answers.
Essay QUESTION 1 (30%) (360 Points)
On May 1, 1998, Mr. John Smith entered the Nirvana Hospital in Milwaukee, Wisconsin. The Nirvana Hospital is operated by the Nirvana Life Sciences Corporation (hereinafter "Nirvana"). Mr. Smith was subjected to an operation on May 2, 1998. The original purpose of the operation was to remove his left leg, which, because of complications from diabetes had become gangrenous and had to be amputated. The operation was performed by Dr. Mary Cross. Unfortunately, Mr. Smith had his right leg --which until that date had been perfectly healthy-- amputated on that day. He, as the sole plaintiff, filed a medical malpractice action against Dr. Cross in the United States District Court for the Eastern District of Wisconsin. He claimed damages for assault, for pain and suffering, for continuing physical problems, for continuing medical expenses, for loss of income, and other damages claims that add up to over $2,500,000.00, exclusive of costs and interest. Dr. Cross answered the complaint by defending that she had been called to the hospital from her usual practice in Chicago, because the Nirvana surgeon who was scheduled to operate on Mr. Smith, had to handle an emergency operation. She further alleged that the patient's chart indicated that it was his right leg which was to be amputated, not the left. She attributed this error to Nirvana's employees, since they were the only ones with access to the patient's records. Therefore, she filed a third-party complaint against Nirvana, alleging that they had to compensate her for any damages that might be awarded to Smith. She further alleged that she had not been paid her $85,000.00 fee for this operation, and asked that the court award judgment therefor plus interest and costs. Nirvana was not amused. It made claims against everyone already in the case. First it sued the doctor; then it initiated claims against Mr. Smith, alleging that he was the proximate cause of his damages, because he changed the chart, in order to be able to sue and to recover a substantial judgment. Nirvana alleges that Mr. Smith is suicidal, because of his long and debilitating illness, and is looking for way to leave some money to his ex-wife and their three children. Mr. Smith is outraged and responds by filing claims against Nirvana, alleging that its employees contributed to his damages by making an error on his chart.
Assume that Wisconsin law applies to all claims, that Wisconsin is a joint and several tort liability state, and the parties have pleaded accordingly. The only basis of original jurisdiction that has been pleaded is Diversity of Citizenship. Nirvana is incorporated under the laws of California and has its Principal Place of Business in Milwaukee, Wisconsin. For Diversity purposes, Mr. John Smith is a citizen of Wisconsin. Dr. Mary Cross is a citizen of Illinois.
As to the facts described above, answer the following questions only:
1. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by Mary Cross against Nirvana.
2. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by Nirvana against John Smith.
3. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by the John Smith against Nirvana.
4. Identify and explain the source(s) of subject-matter jurisdiction for claims by Mary Cross against Nirvana.
5. Identify and explain the source(s) of subject-matter jurisdiction for claims by Nirvana against John Smith.
6. Identify and explain the source(s) of subject-matter jurisdiction for claims by John Smith against Nirvana.
COMMENTS:
IN GENERAL, if you had read the feedback memorandum for your practical project, and especially if you read the answers to the special joinder and jurisdiction exercises that we did in class, you had all the necessary elements to answer this question. Therefore, I was strict and technical in the grading of this essay, which should have proved incredibly easy to any student who carefully prepared their practical project, and who carefully reviewed my feedback memo therefor. It was also very similar to the Joinder/Jurisdiction exercises that we did in class, I just changed the citizenship of the parties to make things more interesting.
1. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by Mary Cross against Nirvana.
Initially, you should have identified this as a rule 14(a)[1] situation, which I have used in almost every one of my exams, and which was the subject of your practical project, and many class sessions, including the sessions on Joinder of claims and parties, and the special Joinder/Jurisdiction exercises that I handed out in class. The answers for these exercises are a blueprint of the applicable rules for this question, so I will not repeat myself too much.
This fact-pattern requires the pleading of a contribution claim by Dr. Cross. You should have explained how such a claim would have been drafted in this case. You had a multiple claim situation pursuant to Rule 18(a) --those pesky plurals were very important. Dr. Cross wanted to get paid for her work. You should also explain the joinder of other claims. Here, there was a choice to describe the claims as arising from the same transaction or occurrence or unrelated (path of least resistance). As explained in Clark v Associates, Joint and several Liability gives the pleading party a great deal of leeway. But, you had the contract claim for services rendered and the contribution claim for the tort claim by the original plaintiffs.
2. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by Nirvana against John Smith.
As explained in your project feedback memo, this was a 14(a)[6] situation. Then Rule 18(a) was available for joinder of multiple claims. Again, I also wanted an explanation of the multiple claim joinder, as it related to these facts. Articulating the claims was also important. Finally, explaining the transaction and occurrence test, as it related to the original claims was necessary to complete this answer.
3. Identify and explain the Federal Rule(s) of Civil Procedure that provide the basis for the claims made by John Smith against Nirvana.
This is a 13(a) Compulsory Counterclaim(s). It is interesting to note the lack of cross-reference in 14(a)[6] to rule 13, but this is covered by the "opposing party" language in that Rule. Then, again, an explanation of the joinder of new claims standard, and tying it to the facts of the case was expected from everyone. The the joinder of multiple claims also had to be addressed, and you had to discuss Rules 13(b) and 18(a). Then an explanation of the transaction and occurrence standard and how it related to these claims.
4. Identify and explain the source(s) of subject-matter jurisdiction for claims by Mary Cross against Nirvana.
Remember my often-repeated warning that each claim must be subjected to jurisdictional analysis these days and that finding a basis for joinder in the Rules does not provide you with Subject-Matter jurisdiction. Therefore, a proper basis of Original or Supplemental subject matter jurisdiction must be found. Here, you have been told that diversity is the only basis of original SMJ, therefore, you have to find diversity or then go to supplemental. Here, Dr. Cross is from Illinois, and Nirvana from California and Wisconsin. Therefore, there IS original diversity jurisdiction under section 1332. (1332(a)(1) and 1332(c)(1) ). As to each claim, this raised the issue of jurisdictional amount, which you had to discuss individually, and then discuss aggregation of multiple claim amounts.
5. Identify and explain the source(s) of subject-matter jurisdiction for claims by Nirvana against John Smith.
Again, each claim had to be analyzed. Because Nirvana is a Citizen of California and Wisconsin, pursuant to section 1332(c)(1), we have a problem, since diversity is the only basis of original subject matter jurisdiction. Therefore, Smith, being a citizen of Wisconsin (1332(a)(1)) we have a jurisdictional defect, even though the claims can exceed the jurisdictional amount. Which brings us to Supplemental Original Jurisdiction. Here, I insisted on proper analysis, as I taught it: is there 1367(a) jurisdiction, based on the presence of Anchor Claim(s) and does the supplemental claim arise from the same constitutional case. If so, then, was this a claim(s) precluded by section 1367(b). The answer was no, since these are not claims by the original plaintiff, but rather by the defendant.
6. Identify and explain the source(s) of subject-matter jurisdiction for claims by John Smith against Nirvana.
Again, the mantra, analyze each claim for a proper basis of original or supplemental subject matter jurisdiction. The basis of original subject-matter jurisdiction was diversity only, but there was a defect in this situation, as discussed above. Cross referencing was therefore good, but assuming that the same applied was not, i.e., you have to express your cross-reference, not assume it in your mind. Here again, you had to discuss section 1367(a) and identify an anchor claim and the constitutional same case relationship. Finally, this is when things got interesting on 1367(b), because it precludes such claims. A good discussion might have included the unfairness of allowing the claims discussed in part 5 to proceed but not these, but you had to reach a result based on 1367(b). That brings up the issue of 1367(c), which some of the best answers anticipated in discussing part 5 above, or even addressed it completely.
Same constitutional case and compulsory vs. permissive counterclaims: Some circuits have ruled that only compulsory counterclaims fall under Supplemental Jurisdiction. See, e.g., Iglesias v. Mutual life, 156 F3d 237 (1st Cir. 1998). But others have disagreed. See, e.g. "[The language of 1367(a) now permits district courts to maintain supplemental jurisdiction over counterclaims whether compulsory or permissive, so long as the counterclaims 'are so related to' the original claims that they form part of the same case or controversy". Rothman v. Emory University, 123 F.3d 446, 454 (7th Cir. 1997). Channell v. Citicorp, 89 F.3d 379 (7th cir. 1996). This note, which I have included in the feedback memos, was put to good use in some of the best answers.
Essay Question no. 2 (30%) (360 points)
In Gasperini v. Center for Humanities, Inc., Justice Ginsburg, writing for the majority, explains:
Federal diversity jurisdiction provides an alternative forum for the adjudication of state-created rights, but it does not carry with it generation of rules of substantive law. As Erie read the Rules of Decision Act: "Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State." Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law. Classification of a law as "substantive" or "procedural" for Erie purposes is sometimes a challenging endeavor. ***
In his dissent, Justice Scalia, writes:
The Court commits the classic Erie mistake of regarding whatever changes the outcome as substantive. That is not the only factor to be considered. See Byrd *** Outcome-determination "was never intended to serve as a talisman," Hanna v. Plumer, and does not have the power to convert the most classic elements of the process of assuring that the law is observed into the substantive law itself.
For purposes of class discussion, I gave you the following structure of analysis, which I have slightly modified for examination purposes:
I. Is there a Federal rule or practice on point?
(1) Is the rule Constitutionally based, e.g., 7th amendment, Byrd, or supremacy.
(2) Is there a Federal Rule of Civil Procedure, Hanna, Ragan, Burlington, Armco.
(3) Gasperini's majority shows that there may be a federal judicial practice that comes neither from a constitutional rule nor from a rule of civil procedure.
II. Is there a conflict between applicable state law and the federal rule or practice? Or if there is no federal rule or practice, can we ignore state law?
(1) Balancing Byrd factors or the "twin aims" of Erie described in Hanna (i) forum shopping and (ii) fairness.
(2) The conflict with federal a federal rule or practice cannot be avoided by narrow construction and superimposition of the state law. Ragan, Armco.
III. If there is a conflict between an applicable federal rule or practice and state law,
(1) Is it a valid exercise of Federal rule-making power? Sibbach, Hanna
(2) Is it rationally classifiable as "procedure"? Burlington, Hanna, c.f., Note 4, pp. 963-4.
Considering the U.S. Constitution, Erie and its progeny, the Rules Enabling Act (28 USC ß 2072), the Rules of Decision Act (28 USC ß 1652), our class discussion, and your sound judgment, explain, in a short essay: (1) how each of the elements detailed in my structure contributes to distinguishing between "substance" and "procedure;" and (2) why the distinction is important or even necessary.
COMMENTS:
I approached this essay very differently than essay number one. I allocated one third of the points on the basis of doctrinal analysis (i.e., did you display a command of the cases we discussed in class); another one third was awarded on the basis of the discussion of substance vs. procedure in the context not just of the Erie doctrine, but rather of our entire course. Substantive justice vs. procedural justice and how we get to "ultimate" justice; the final one third was awarded on the basis of the writing, did you write an interesting, creative essay.
Obviously, I gave you the structure of the argument, so that was not the important part of the question, though a few students turned it into the crucial part of their failure to answer by not following the instructions. You actually had to show that you understood what the categories meant, by giving content and meaning to the terms used therein, and making the argument coherently. Merely regurgitating, and in this case even worse, re-copying, categories is just not enough.
It was interesting to note how many people thought that Erie created the conflict between substance and procedure. Arguably, to the extent that Brandeis suggests a Constitutional mandate, this might be correct. But, as Justice Reed anticipates, the conflict is simply there because, after 1938 Federal Procedure was going to be uniform, in a manner that it never had been before. In this respect, the conflict dates back arguably to the constitution, if Justice Brandeis is correct, and certainly to the Judiciary Act of 1789, the first version of the Rules of Decision Act, that was interpreted in Swift v. Tyson in 1842. The best answers managed to make this highly sophisticated historical analysis.
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