Questions and Answers of Civil Procedure

4. By contrast to the Federal Rules, the writ system was claim-specific, not transsubstantive, so court procedure differed depending on the injury alleged and the relief sought. Sir Henry Maine
3. If defendant entered a plea, plaintiff had three choices. First, he could demur on the ground that the plea did not state a valid defense. For example, if plaintiff had alleged a breach of
2. A substantive response to a claim, other than an expression of total agreement, would require defendant to demur or to plead. A demurrer would challenge the legal sufficiency of the plaintiff’s
1. At common law, plaintiff’s claim was set forth in the declaration. Stripped of much verbiage, and stated in modern English, it might have said: “Defendant promised to deliver a horse to
4. In a contract action, may a claim for money had and received based upon a conversion be brought as a counterclaim under a statute that provides that “in an action on contract, any other cause of
3. Governments generally are immune from suit except as their immunity has been expressly waived by statute. Suits in contract are more commonly consented to than suits in tort. See 3 Davis,
2. Why did the court hold that the action was in contract for purposes of the statute of limitations but in tort for purposes of deciding whether the Board was liable for the Regents’action?
1. Is Garrity, in either its statute-of-limitations aspect or its liability aspect, concerned with the theory of the pleading? In what way, if any, is the problem in Garrity different?
3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.
2. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is
2. Although the division between law and equity in the federal courts never took the form of separate courts or judges of law and equity, the two were separately administered in the federal system
1. What differences do you find between procedure at common law and procedure in equity as it is described by Bowen? What are the differences in pleading, the manner of receiving evidence, the
2. Plaintiff leased a farm with cattle to Y for one year. After a few months, Y sold the cattle to defendant and absconded. What theory might be used to allow plaintiff to bring trover against
1. Plaintiff pawned a jeweled hatband to X for 25 pounds with no certain time fixed for redemption. X delivered it to defendant, and then died. Plaintiff tendered 25 pounds to the executrix, who
2. If defendant so negligently kept twenty barrels of plaintiff’s butter that “they were become of little value,” would trover lie? See Walgrave v. Ogden, 1 Leon. 224, 74 Eng. Rep.205
1. Plaintiff’s goods were delivered by a ship’s captain to defendant wharfingers to be held for plaintiff. The goods were then lost or stolen from defendants. Could defendants be said to have
2. That there was no conversion in the defendant. The plaintiff by laying his goods where they obstructed the defendant from going to his chest, was in that respect a wrong-doer. The defendant had a
1. That the plaintiff having made satisfaction to A for the goods, had thereby acquired a sufficient property in them to maintain trover.
2. Trials ordinarily were held at common law before a single judge and a jury. After verdict, if the losing party wanted the judgment of the entire court on a question of law that was involved in the
1. In what ways does Justice Blackstone differ from Chief Justice De Grey? From Justice Nares? On what facts might Chief Justice De Grey and Justice Nares reach a different result?Chief Justice De
3. In England’s American colonies, the distinctions between the forms of action, although recognized, were not enforced with the rigor that characterized the procedure of the mother country. For
2. Maitland’s conclusions that trespass grew out of the appeal of felony and that case drew its authority from the Statute of Westminster II are debatable. Others have found the root of trespass in
1. Case developed into a remedy not only for wrongs that were similar to those governed by trespass, but for wrongs that were much more similar to those for which the action of debt was appropriate.
9. “[A]n English bill in the Exchequer.” That part of the report of Veale v. Warner beginning, “But it was a case of the greatest hardship * * * “ is not a part of the record, but is simply
8. Why did Saunders, a thoroughly capable lawyer, file what he knew was an inadequate rejoinder? The answer lies in a peculiar facet of the demurrer:* * * [O]n demurrer the court will consider the
7. “[W]herefore he prays judgment if the said Thomas ought to be admitted, against his own acknowledgment, to say.” Plaintiff in his replication had traversed defendant’s claim of payment. Thus
6. “[W]herefore he prays judgment if the said Thomas ought to have or maintain his said action.” This is the standard conclusion of a pleading in confession and avoidance. Compare the conclusion
5. “[T]o the Court * * * now here shewn”; “prays oyer.” A plaintiff suing upon a deed or a bond made profert of the document that is, the plaintiff formally tendered it to the court, although
4. “[I]n the parish of St. Mary-le Bow in the ward of Cheap.” As the jury originally decided cases on its own knowledge, it was necessary that jurors be drawn from the vicinity in which a
3. “[P]ledges of prosecution.” The original writ in a lawsuit directed the sheriff, to whom it was addressed, to take some action, conditioned on plaintiff’s “mak[ing] you secure of
2. “[H]is * * * bill against William Warner, * * * in the custody of the marshal, & c.”Common Pleas was supposed to have exclusive jurisdiction over actions of debt, such as Veale v. Warner. But
1. “[B]efore our lord the King at Westminster.” Veale v. Warner was brought in the Court of King’s Bench, one of the three royal common-law courts, maintaining separate existence until merged
3. The “modes of decision” for issues of fact, referred to in the extract from Stephen, were, at an early date, “trial” by ordeal, by combat, and by oath. These were not trials in the sense
2. In this discussion we are concerned with pleading in the royal courts. It should be noted that at the time of the Norman Conquest (1066) and for a century or more afterward the ordinary recourse
1. The change from oral to written pleadings cannot be dated precisely. The shift began in the late fourteenth century and extended into the second half of the sixteenth. Predictably the change
5. In AMERICAN ELEC. POWER CO., INC. v. CONNECTICUT, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011), the Court addressed whether plaintiffs, which included several States, New York City, and three private
4. In 1979, Viet Nam veterans, their spouses, and their children filed a federal lawsuit in the Eastern District of New York alleging injury from the veterans’ exposure to Agent Orange, a phenoxy
3. Does the Boyle defense apply only to military contractors or to any contractor that provides goods and services to the United States? In Silverstein v. Northrop Grumman Corp., 367 N.J. Super. 361,
2. What is the justification for the contractor’s immunity? Is it to reduce fiscal costs that might be passed on to the United States? Is it to protect government decisions that affect the
1. Can the Court’s decision in Boyle be reconciled with its rejection of a federal common law rule in Parnell, see p. 482, supra?
6. Are there limits to the federal court’s lawmaking power? See Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263, 269 (1992). One view is that federal common law should be
5. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION v. PARNELL, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), involved the question of whether defendants had taken bearer bonds, guaranteed by
4. In UNITED STATES v. KIMBELL FOODS, INC., 440 U.S. 715, 99 S. Ct. 1448, 59 L.Ed.2d 711 (1979), the question arose whether federal or state rules should determine whether the federal government or a
3. Upon what sources may the federal court rely in developing a federal common law rule of decision? In many contexts, federal courts derive a federal common law rule from state common law sources,
2. How does the federal common law rule recognized in Clearfield Trust differ from general common law under Swift v. Tyson? Is the former rule binding on the states but the latter rule is not? Is
1. Why doesn’t the Clearfield Court mention the Rules of Decision Act?
10. Does the sometimes erroneous interpretation of state law by federal diversity courts provide an argument for abolishing diversity jurisdiction? Consider the following:Until corrected by the state
9. In a diversity case, how much weight should a federal appellate court give to a federal district court’s determination of state law? In SALVE REGINA COLLEGE v. RUSSELL, 499 U.S. 225, 111 S.Ct.
8. In FACTORS ETC., INC. v. PRO ARTS, INC., 652 F.2d 278 (2d Cir. 1981), certiorari denied 456 U.S. 927, 102 S. Ct. 1973, 72 L.Ed.2d 442 (1982), a federal court sitting in New York was required to
7. A noted federal appellate judge has warned that when interpreting state law, “federal courts often get state law wrong because federal judges don’t know state law and are not the ultimate
6. In TUNICK v. SAFIR, 228 F.3d 135 (2d Cir. 2000), a photographer challenged the locality’s refusal to grant him a permit to conduct a photo shoot of seventy-five to one hundred nude models
5. As an alternative to abstention, a district court may invoke a procedure called certification that allows it to petition a state court to answer an unresolved question of state law. See Challener,
4. If state law is unclear or unresolved, may the district court conclude “there is simply no law to apply,” and rule against the party with the burden on that question?See Clark, Ascertaining
3. If the state’s highest court has not declared the state law in question, the general view is that “federal courts must act as ‘another court of the State’ and choose from a variety of
2. It seems fairly clear that when the state’s highest court has declared the state law in question, the federal court is required to follow the state’s decision. Does that mean that the federal
1. The history of the privity rule in Mississippi following Mason is interesting. Relying heavily on Judge Magruder’s opinion, the Fifth Circuit held in Grey v. Hayes–Sammons Chem. Co., 310 F.2d
4. The Class Action Fairness Act of 2005, amended 28 U.S.C. § 1332 to permit diversity jurisdiction over multistate disputes despite the absence of complete diversity of citizenship.There is
3. In ALLSTATE INSURANCE CO. v. HAGUE, p. 108, supra, the Supreme Court held that a state could apply its substantive law in a case, so long as the state had significant contacts or a significant
2. Could Congress enact a statute specifying choice-of-law rules for federal courts in diversity cases? In answering this question, remember that, although today every state contains at least one
1. The Supreme Court reaffirmed the Klaxon rule in Day & Zimmermann, Inc. v.Challoner, 423 U.S. 3, 96S.Ct.167, 46 L.Ed.2d 3 (1975), underscoring that the diversity court“is not free to engraft onto
4. Justice Ginsburg’s dissent relied extensively on the legislative history to the New York rule. In ascertaining the meaning and purpose of a state rule, is a court sitting in diversity obliged to
3. In what respect does Justice Stevens’ concurrence differ from the dissenting opinion authored by Justice Ginsburg? Are you persuaded by the dissenters’ position that Federal Rule 23 does not
2. How does the approach taken by the plurality as to when a Federal Rule is valid under 28 U.S.C. § 2072differ from that of the concurrence?
1. In the absence of a majority opinion, does Justice Scalia’s plurality or Justice Stevens’concurrence state the rule to be followed by the district courts in determining when a state rule is
3. What are the implications of Gasperini for the application of other Federal Rules?Under Justice Ginsburg’s approach, ought state law provide456the standard for granting summary judgment or a
2. To what extent did the majority’s approach to the “unguided Erie choice” differ from earlier decisions? What role did York play in the analysis? What role did Byrd play in the assessment of
1. Did the Court apply the Rules of Decision Act or the Rules Enabling Act? Are you persuaded that Federal Rule 59 does not cover the point in dispute? What is the basis for Justice Scalia’s
3. In BURLINGTON NORTHERN R. CO. v. WOODS, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), Woods had obtained a jury verdict against Burlington Northern in a personal injury action prosecuted in an
2. Can you reconcile the Court’s interpretation of Rule 3 in Walker with its interpretation of Rule 4 in Hanna? Rule 4 says simply that service may be made by leaving a copy of the summons and
1. Rule 3 does not specify the purposes for which an action is commenced. Two arguments were thus available for the Court in Walker to find that Rule 3 did not operate to toll the Oklahoma statute of
8. Professor Ely, who served as a law clerk to Chief Justice Warren the term that Hanna was decided, has emphasized the distinct analytic questions that a federal court must consider when faced with
7. Under Hanna, is a federal court required to apply a state statute that closes the doors of the state courts to suits by foreign corporations that have not registered to do business in the state?
6. Justice Harlan called Erie “one of the modern cornerstones of our federalism.”Federalism in the United States is associated with a number of different values, including“freedom to
5. On what basis did Justice Harlan concur? What does he mean by “primary” decisions of conduct? Are you convinced that these activities are left by “our constitutional system * ** to state
4. Chief Justice Warren asserted that “the Erie rule is rooted in part in a realization that it would be unfair for the character or result of a litigation materially to differ because the suit had
3. Chief Justice Warren’s opinion relied on SIBBACH v. WILSON & CO., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), to define when a rule is procedural for purposes of 28 U.S.C.§ 2072(a). In
2. The distinction between substance and procedure is important to both the Rules Enabling Act and the Rules of Decision Act. The second sentence of the Rules Enabling Act says that no Federal Rule
1. How do the Rules Enabling Act and the Rules of Decision Act interact? Upon which of these two statutes is the holding in Hanna based? Can you explain why?
4. Commentators associate Byrd with a balancing test for determining when state law should displace federal law in a diversity action. Does the balancing test replace the outcomedeterminative test of
3. The Court’s analysis concludes with an assessment of whether the judge/jury allocation may affect the outcome. Do you agree with the Court’s conclusion? Is the analysis consistent with York?
2. In the second part of the decision, the Court moved toward a consideration of the importance of the federal interest that is at stake. What does Justice Brennan mean when he writes that “the
1. The Court’s analysis in Byrd proceeds in three parts, starting with an analysis of the South Carolina statute. Do you agree with Justice Brennan’s assertion that the South Carolina rule is
6. Evaluate the following passage:
5. Almost any legal rule, whether labeled procedural or substantive, has the potential to affect the outcome of litigation. Does this mean that, after York, a federal court in a diversity case must
4. Four years after York, the Supreme Court, all on the same day, decided a trio of cases involving the Eriedoctrine:RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO., 337 U.S. 530, 69 S.Ct.1233, 93 L.Ed.
3. To what extent does York require the displacement of a Federal Rule of Civil Procedure in favor of a contrary state practice? Does that result follow from application of the Rules of Decision Act?
2. If a New York equity court would not have granted relief for whatever reason, should a federal court sitting in diversity nevertheless grant a remedy? In answering this question, consider Justice
1. What purposes do statutes of limitations serve? Are these purposes “substantive”?Procedural? Consider the following comment:Limitations law is famously a body of rules that are neither grass
9. Professors Wright and Kane have said: “It is impossible to overstate the importance of the Eriedecision.” Wright & Kane, Law of Federal Courts 376 (7th ed. 2011). Reactions to the Erie
8. Does the Rules of Decision Act require federal courts to follow state procedures as “rules of decision”? Justice Reed’s concurring opinion in Erie emphasized the power of Congress to enact
7. The Court in Swift v. Tyson associated law with transcendent principles that the judiciary discovered. See Ides, The Supreme Court and the Law To Be Applied in Diversity Cases: A Critical Guide to
6. The Erie decision relied on research that revealed a previously unknown draft of what became the Rules of Decision Act of 1789. The draft read:
5. If discrimination against in-state defendants really is a problem, could it be solved by allowing in-state defendants to remove to federal court? Does it make sense to require federal courts to
4. Does the statement that the rule in Swift v. Tyson“rendered impossible equal protection of the law” implicate constitutional or policy concerns? Does it matter that at the time of the decision
3. Of what relevance to Erie’s possible constitutional basis is the reservation of power to the states and the people in the Tenth Amendment to the United States Constitution?
2. What is the constitutional basis for the statement in Erie that “Congress has no power to declare substantive rules of common law applicable in a State” and that “no clause in the
1. Is Erie a constitutional decision or does it rest on other grounds? Is it significant to your answer that the Court found the rule of Swift v. Tyson to be unconstitutional, but did not invalidate
3. Does it make sense to have the federal courts promulgate general, uniformly applied commercial laws? Why should a person suing in federal court in Oklahoma not receive the same remedy as a person
2. According to Swift, what is the source of the federal courts’ authority to develop and apply general common law rules in cases heard within the grant of diversity jurisdiction? Is Justice
1. According to Justice Story, why are judicial decisions only evidence of law, and not law itself? On what basis did Justice Story distinguish judicial decisions interpreting state statutes from

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