The Repressible Myth of Shady Grove

This Article untangles the effects of the Supreme Court\u27s latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court\u27s new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule\u27s coverage, federal courts should, when alternative readings are defensible, read it to minimize its intrusion on substantive rights (that is, they should construe a Rule in a fashion that includes considering the impact on the generalized congressional and state interests in regulating substance, but they should not adopt a narrowed construction just to avoid conflict with the state\u27s interests peculiarly in play in the particular situation presented by the case at bar). In the end, Shady Grove has not fundamentally altered Erie, but it mercifully makes the current interpretation more comprehensible

Litigation Realities Redux

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author tresses the needs for and benefits from understanding and using empirical methods in the study and reform of the adjudicatory system\u27s operation Reprinted by permission of the publisher

The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction

Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. law differs because its legal institutions have managed to constitutionalize jurisdiction; (3) it is the same old story of common-law courts playing too active a part in the development of the law in the United States; (4) the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5) those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.S. law somewhat greater certainty and restraint, the distance to Europe would shrink even further. Jurisdiction could thus be the fulcrum for rearranging the international judicial order. Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series of small steps necessary to prepare the way for achieving the long-run goal of a multilateral convention that harmonizes jurisdictional law

Procedure\u27s Magical Number Three: Psychological Bases for Standards of Decision

So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work. Part I of this essay describes the role of the number three in procedure, with particular regard to standards of decision. Part II reviews the contribution of cognitive psychology toward understanding certain relevant limitations on human capabilities. Part III argues that although the number three represents more than imagination or coincidence for the proceduralist, its persistent recurrence need not lead to Pythagorean conclusions of magic. Instead, limits on our cognitive powers likely dictate this systematic structure of procedure, awareness of those limits should help us better to understand and shape that procedure, and these insights can lead to very specific suggestions for reform

Standards of Proof in Japan and the United States

This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil law of Japan requires that facts be proven to a high probability similar to beyond a reasonable doubt, while the common law of the United States requires that the burdened party satisfy merely a more-likely-than-not standard. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial. As to the historical causation of the difference in standards of proof, civil law and common law standards diverged in the late eighteenth century, probably because of one system\u27s French Revolution and the other\u27s distinctive procedure. The French Revolution, in the course of simplifying the civilian law of proof, hid the standards of proof from view. Meanwhile, the common law jury served to induce judges to articulate standards of proof for the adversary system. As to the systems\u27 current motivations to adhere to the old standards, the different standards conform to the subtle differences between the two systems\u27 procedural objectives. The civil law system seeks the legitimating benefits of the myth that its courts act only on truefacts and not on mere probabilities. Common law courts seek legitimacy elsewhere, perhaps in other myths, and thus are free to adopt preponderance of the evidence as the standard of proof that more efficiently and fairly captures the real truth of the case

Limiting the Last-in-Time Rule for Judgments

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, not only here under our last-in-time rule but also abroad where a first-in-time rule reigns. The Article resurfaces from the depths to rearrange the puzzle pieces into a simple reformulation—an elaboration rather than an amendment—of the American law on inconsistent judgments