Erie and Preemption: Killing One Bird with Two Stones

The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie as a preemption doctrine. The analysis demonstrates how and why Erie constitutes a species of preemption. It then shows the appropriateness of preemption analysis to Erie problems whether one is dealing with a federal rule of civil procedure or with federal common law. Because preemption underlies both wings of the Erie doctrine, the standard account’s bifurcated approach is wrong. Moreover, employing doctrines developed in other preemption contexts explains the results of the Supreme Court’s Erie cases better than the Court’s own standard account. By making explicit the linkage between Erie and preemption, one can clarify the analysis and better predict and explain the results of the Supreme Court’s cases

Of Hats and Robes: Judicial Review of Nonadjudicative Article III Functions

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge to these nonadjudicative actions should review them. This article focuses on perhaps the most common enlistment of Article III entities in nonadjudicative activities: the creation of the Federal Rules of Civil Procedure (and other federal rules). Since these rules were created by federal judges, is some measure of deference due them when their validity is challenged? The federal procedural rulemaking apparatus resembles federal agency rulemaking, and in that context the Supreme Court has established a strong deference to agencies under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. This article concludes that the federal courts as adjudicators should not defer to the federal judges or courts as rulemakers, because to do so deprives parties of the opportunity to challenge a federal rule in an adjudicated proceeding with the procedural protections that accompany litigation. Finally, the same reasons that lead to a rejection of deference in this context apply equally to other agency rulemaking, leading to the implication that Chevron deference in general should be rejected

Choice of Law and Time, Part II: Choice of Law Clauses and Changing Law

Modern choice of law analysis usually honors the parties’ contractual choice of governing law. But what happens when the law selected by the parties changes between the time of their contracting and the time of litigation? Or what if the law of the state whose law would otherwise apply changes so that its policy is now offended by the choice of law clause although its policy was not violated when the parties contracted? These questions raise the often-overlooked temporal aspect of choice of law analysis. Should courts regard the law to be applied as fixed to the time of the transaction or as changeable over time? The answers to these problems are influenced by several factors: the proper concern for current state policy; the parties’ expectations; and whether the new law invalidates a previously valid transaction or, alternatively, makes a previously invalid transaction valid

At the Intersection of \u3ci\u3eErie\u3c/i\u3e and Administrative Law: Front-Loading the \u3ci\u3eErie\u3c/i\u3e Question into the Adoption of a Federal Rule

The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law were decided at the time of the rule’s creation, both private parties and the judicial system would benefit from the increase in predictability and certainty. Moreover, the Advisory Committee’s stating an intent for a rule to displace state law would force the Supreme Court to police overreaches by the federal rules as against state interests by using the Rules Enabling Act as an enforceable limit on the federal rules. This would be an improvement over the current system, under which concerns about intrusions on state prerogatives are expressed not through a validity analysis but by relying on a fiction that the rule was not intended to apply

Cracks in Fossil Enamels Resulting from Premortem vs. Postmortem Events

Vertebrate enamel preserves a record of fracture-producing strain. Fracturing during the life of the individual is potentially a source of selection for stronger enamel in the course of evolution. To determine if it is possible to recognize such fractures in fossil enamel, cracks in a variety of fossil materials, including enamel-covered holostean scales, crocodilian teeth, theropod and hadrosaurid dinosaur teeth, and mammalian teeth were examined. Cracks that occurred during the life of the individual could be recognized by abrasive wear on edges exposed at the surface of the enamel in areas worn by oral or locomotor abrasion. Certain distinctive crack patterns were identified as results of specific stress states occurring during life. Transverse cracks on the anterior parts of Lepisosteus scales were probably caused by external loading. Hertzian cracks and shallow, arcuate, lateral cracks on the occlusal edges of tooth enamel appear to be caused by stress concentrating impacts. Horizontal cracks arranged asymmetrically on the sides of conical teeth were reproduced in models subjected to bending stresses. Oblique cracks near the tips of conical fossil teeth were produced in models by oblique loads near the tip. Vertical cracks around cylindrical or conical tooth surfaces may be caused by several different sources of stress, including lateral wind loads and vertical snow loads. Of the postmortem causes of fracturing of fossil enamel, drying cracks seem to be the most important. Experimental drying produced from 25% to 50% of the cracks in dry teeth

Consent to Jurisdiction Based on Registering to Do Business: A Limited Role for General Jurisdiction

General jurisdiction allows a state to assert jurisdiction over a defendant for any claim, even one having no relationship to events or parties in the state. Consent is one basis for general jurisdiction. Because of the Supreme Court’s recent constrictions of specific and general jurisdiction, plaintiffs are increasingly turning to general jurisdiction based on an out-of-state corporation consenting to jurisdiction by registering to do business in the state. There are several categories of cases in which a plaintiff may find such jurisdiction useful. But an unlimited form of such general jurisdiction is both bad jurisdictional policy and poses constitutional problems. A state may impose a waiver of constitutional rights as a consequence of some voluntary action, such as doing business within the state, but it may do so only to support a state interest that has a nexus to the defendant’s activity and is proportionate to the burden imposed. In some cases, the forum asserting such jurisdiction will have an interest. When the plaintiff is local to the forum, for example, the state would have an interest in providing a forum in order to benefit its citizen. But in other cases, the state lacks an interest sufficient to demand that the defendant consent to jurisdiction. In cases where the litigation is unconnected to any state interest, the state exceeds its powers by asserting jurisdiction via this extracted consent

Microscopic Effects of Predator Digestion on the Surfaces of Bones and Teeth

Concentrations of small fossil mammals are frequently encountered in Cenozoic deposits, but the causes for such accumulations have seldom been determined. In many cases the tooth, jaw, and limb fragments appear to be well-preserved under light microscopy, and it is difficult to differentiate damage due to predator digestion from breakage and abrasion due to physical agents. In order to find more specific evidence of predator digestion, we used a scanning electron microscope (SEM) to examine the surface microstructure of bones and teeth consumed by Bubo virginianus (great horned owl) and Canis latrans (coyote), which prey upon similar species. Effects of digestion were found on all the digested bones and teeth examined. The effects on bone include distinctive sets of pits and fissures, dissolution, and physical polishing. The pits and fissures are apparently caused by solution that commences in canals beneath the surf ace of the bone. The most conspicuous effects on teeth are island-like pillars of dentin surrounded by deep solution fissures. The effects of digestion by coyote and owl are fundamentally the same but differ in degree of development. Bone digested by the owl shows a greater degree of polishing and rounding of edges but has less extensive fissuring. Wide variation in the degree of surface damage occurs in bones digested by the coyote, even within a single fecal pellet

Enamel Structure in Astrapotheres and Its Functional Implications

Astrapotheres, large extinct ungulates of South America, share with rhinoceroses vertical prism decussation in the cheek tooth enamel. The similarity extends beyond merely the direction of the planes of decussation. The vertical decussation in astrapotheres is confined to the inner part of the enamel and has uniformly well-defined zones in which the prism direction differs by nearly 90° and the zones are separated by narrow transitional borders of intermediate prism direction. The outer enamel consists of predominantly occlusally and outwardly directed prisms. Within the outer enamel is a region of horizontally decussating prisms; here the angle of decussation is usually smaller than that of the inner vertically decussating prisms. Except for the horizontal decussation in the outer enamel, these conditions match structures that have been described for rhinocerotoids. These features, together with the similarity in premortem crack direction and gross shape of the cheek teeth, imply that astrapotheres and rhinocerotoids shared essentially the same system of cheek tooth mechanics. However, the microstructure of the canine enamel in the astrapotheres is distinct. The lower canine enamel of the Oligocene Parastrapotherium exhibits a form of vertical decussation modified by a wavelike bending of prism zones, whereas the decussation in the rhinocerotoid canine is horizontal. The lower canine in Parastrapotherium was subjected to different loading conditions, judging from multiple sets of premortem crack directions. The modified vertical decussation would in theory resist cracking under different directions of tensile stresses. This is confirmed by the sinuous paths of cracks that run in directions differing by up to 90°. That diverse stresses were generated in the enamel during life is confirmed by the pattern of premortem cracks in Parastrapotherium. The enamel in the upper canine of a late Miocene astrapothere lacks decussation but may have resisted cracking under varied loading conditions by virtue of a 3-dimensional wavelike bending of the prisms