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

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

Death of Paradox: The Killer Logic Beneath the Standards of Proof

The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof. I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form a fuzzy degree of belief in a fact’s existence; they then apply the standard of proof in accordance with the theory of belief functions, by comparing their belief in a fact’s existence to their belief in its negation. This understanding explains how the standard of proof actually works in the law world. It gives a superior mental image of the factfinders’ task, conforms more closely to what we know of people’s cognition, and captures better what the law says its standards are and how it manipulates them. One virtue of this conceptualization is that it is not a radically new view. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof, including the infamous conjunction paradox

Restating Territorial Jurisdiction and Venue for State and Federal Courts

Jurisdiction must become venue, concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing. At the outset the Restatement Second states the requirements that must be met before a court properly may undertake [a civil] adjudication : notice, subject-matter jurisdiction, and territorial jurisdiction. In particular, adopting a view popular with academics, it requires that the exercise of territorial jurisdiction be reasonable as well as accord with certain nonconstitutional restrictions. Herein I shall fault this approach to territorial jurisdiction and also its inadequate attention to venue. In Part I of this Article, I shall first show that under the cases territorial jurisdiction currently has two cumulative components of constitutional stature: power and reasonableness. Then I shall note the intriguingly close ties of the reasonableness requirement to venue; exploring and defining that relationship will incidentally confirm the fruitfulness of considering self-imposed limitations on jurisdictional reach as rules of venue. Thus this Article reformulates the subject of territorial authority to adjudicate by relegating all nonconstitutional restrictions on geographic selection of forum into that third category: venue. I believe that this tripartite reformulation permits a clear and suggestive statement of the current law. And it induces an attractive vision of the future--the demise of power, the emergence of reasonableness as the sole constitutional test for territorial authority to adjudicate, and the intelligent use of venue to narrow the choice of forum. Having elaborated my proposed approach, I can in Part II briefly review my differences with the Restatement Second. I contend that its treatment of this area neither accurately states the current law nor adequately frames the relevant concepts so as to facilitate reform

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