Notre Dame Law Review

Articles from Vol. 86, No. 3, July

Institutional Practice, Procedural Uniformity, and As-Applied Challenges under the Rules Enabling Act
INTRODUCTION I. SHADY GROVE ON As-APPLIED CHALLENGES II. As-APPLIED CHALLENGES AND PRIOR PRACTICE A. Sibbach (and Schlagenhauf) and Hanna B. Sub-Rule As-Applied Review C. State-Specific As-Applied Review 1. Civil Rule 23.1 ...
Our Class Action Federalism: Erie and the Rules Enabling Act after Shady Grove
INTRODUCTION I. ERIE AND THE RULES ENABLING ACT II. THE SHADY GROVE DECISION A. Does a Federal Rule Control? B. The REA's Substantive-Rights Provision C. Forum Shopping and Erie's Twin Aims III. CONTROL, CONFLICT, AND COLLISION:...
Powers, Rights, and Section 25
The 1789 Judiciary Act's Section 251 has proved an embarrassment for those claiming that all federal question jurisdiction must vest, either originally or by appellate review, in the federal courts. (2) Because Congress did not provide for general...
Science, Law, and Truth: Defining the Scope of the Daubert Trilogy
INTRODUCTION The characteristic goals and the inherent exuberance of science generate a natural tendency toward progress and expansion. (1) That tendency finds particular expression in today's courtroom, where science offers insight into a wider...
Shedding Light on Shady Grove: Further Reflections on the Erie Doctrine from a Conflicts Perspective
As is well known, the "Erie (1) doctrine" broadly involves questions of vertical choice of law: what law should be applied in a federal court when the underlying claim arises under state law? (2) In an article that appeared in this journal twelve years...
The Litigation-Arbitration Dichotomy Meets the Class Action
INTRODUCTION Observers typically cast litigation and arbitration in contrast to one another. Litigation takes place under off-the-rack rules prescribed by public law--for the federal courts, the Federal Rules of Civil Procedure. By contrast, arbitration...
The Repressible Myth of Shady Grove
This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms...
The Standard for Measuring the Validity of a Federal Rule of Civil Procedure: The Shady Grove Debate between Justices Scalia and Stevens
INTRODUCTION In Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., (1) alternative interpretations of [section] 2072(b) of the Rules Enabling Act (REA) (2) were offered by Justices Scalia and Stevens. (3) The focus of this Article...
Where to Put It All? Opening the Judicial Road for a Long-Term Solution to the Nation's Nuclear Waste Problem
INTRODUCTION In 1983, Congress passed and the President signed into law the Nuclear Waste Policy Act (NWPA), (1) which directed the Department of Energy (DOE) to enter into contracts with generators of nuclear waste to collect that waste in return...
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