Abstract

http://ssrn.com/abstract=1410869
 


 



An Essay Regarding Gasperini v. Center for Humanities, Inc. and the Demise of the Uniform Application of the Federal Rules of Civil Procedure


Michael A. Berch


Arizona State University (ASU) - Sandra Day O'Connor College of Law

Rebecca White Berch


affiliation not provided to SSRN

1999

Mississippi Law Journal, Vol. 69, p. 715, 1999

Abstract:     
Ever since the passage of the Rules of Decision Act in the formative years of the United States, the federal judiciary has grappled with the question of when a federal court will apply state law or rule to resolve an issue before it. The landmark case of Erie v. Tompkins broke ranks with a long and uniform line of cases formulating rules of general federal common law for deciding cases brought in the federal courts solely on the basis of diversity. The years since have witnessed misunderstanding and misapplication of Erie. The Supreme Court has expended extraordinary efforts to resolve the intractable problems in ways that not only comport with separation of powers and federalism principles, but also can be understood and applied by practitioners. In this area of the law, confusion reigns. In Gasperini v. Center for Humanities, Inc., the Court noted the "challenging endeavor" of clarifying this area of the law, but in attempting to do so, merely confounded the problem.

This article provides a brief overview of Supreme Court precedents in this area of law and examines the Gasperini decision. Gasperini changed the analysis of which rule--state or federal--a federal court will apply when deciding a diversity case. This article argues that Gasperini made matters worse and suggests that lower courts will wrestle with the breadth of Gasperini.

Number of Pages in PDF File: 34

Keywords: diversity, civil procedure, federalism

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Date posted: May 28, 2009  

Suggested Citation

Berch, Michael A. and White Berch, Rebecca, An Essay Regarding Gasperini v. Center for Humanities, Inc. and the Demise of the Uniform Application of the Federal Rules of Civil Procedure (1999). Mississippi Law Journal, Vol. 69, p. 715, 1999. Available at SSRN: http://ssrn.com/abstract=1410869

Contact Information

Michael A. Berch (Contact Author)
Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
Rebecca White Berch
affiliation not provided to SSRN
Feedback to SSRN


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