The Erie part of Civ Pro went uniquely well this year. Both sections were really engaged and had a lot of fun with the problems (several described arguing about the problems in study rooms into the wee hours). I will not know if people actually got it until I see their final essays. But they were energized.
For about the past decade I have taught this part almost entirely via problems. They read Erie and Hanna–and this year added Berk. Then I give them a bunch of problems, which we work through in class. I think it is a fun way to teach this topic. And, at least this year, so did they. The problems offer a great review of the rules portion of the class; they have to discuss how issues would be raised under the rules and what procedurally prompts the court to decide choice of law.
Also, a shout-out to Alex Reinert (Cardozo) for helping me crack a gap in the framework: When should a court do a relatively unguided Erie analysis and when should it declare state law substantive and thus controlling. The reality is that most courts do the former and nothing wrong. Obviously I should teach students something more meaningful (besides which, that simple approach is wrong).
Alex’s hack: Having determined that no Act of Congress answers the question, the court should ask whether state law is “arguably procedural.” If no, it is “substantive in every traditional sense” (e.g. the duty-of-care rule in Erie) and applies. If yes, the court does the unguided Erie. Again, not sure if courts do it this way because most are sloppy about the analysis, especially when the result is obvious. But Alex’s addition to the framework makes doctrinal sense.
For anyone interested in stealing the idea–and in the tradition of Mike Dorf sharing his Con Law and Fed Courts exams every semester–here are the problems (all involve suits in federal court, obviously):
1) State law requires disclosure of third-party funding agreements. (This could go down multiple paths, although I think Berk makes the right answer clear.
2) State law requires that dispositive motions be spiral bound with a purple cover. (Having just turned in their final LSV brief–which they must bind with colored card stock–their perspective on what might induce forum shopping changed).
3) State law requires 12-person juries in Med Mal cases, where federal practice uses 6-person juries.
4) Special Anti-SLAPP motion (Also goes down multiple paths, per the circuit split, although I think Berk clarifies the answer).
5) SLAPP statute allows attorney fees following an ordinary 12(b)(6) dismissal. (This strikes close to home–the Southern District of Florida allows fees under Florida’s SLAPP law even if the special motion is not available).
6) SLAPP statute allows damages claims (i.e., the defendant in the prior SLAPP action can sue the SLAPP plaintiff for damages).
7) State statutes of limitations against a hypothetical congressional limitations period and a hypothetical FRCP limitations period. This also allows for a fun discussion–inspired by Ben Spencer’s article from a few years ago–about the invalidity of relation back (if we took § 2072(b) seriously) and the special role Congress can play as to the FRCP.
8) State law allows sexual-assault plaintiffs to proceed pseudonymously, whereas federal courts balances privacy against the interest in open courts.1
- I started writing about this, then turned to other projects; I need to come back to it. It presents some unusual Erie/Hanna concerns. When is a multi-prong judicial balancing test an interpretation of an FRCP and when is it stand-alone common law? Might the First Amendment’s “influence if not command” effect on the pseudonymity analysis tilt the Unguided Erie choice toward federal law? ↩︎