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The Substantive Elements in the New Special Pleading Laws

33 Pages Posted: 7 Jul 2008  

Austin W. Bartlett

Northern Illinois University

Amy M. Leonetti

Northern Illinois University

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: July 2, 2008

Abstract

Recently there have emerged new special pleading standards applicable to discrete substantive law claims or to certain remedial requests. These norms often raise troubling procedure/substance questions in separation of powers and choice of law settings. The questions are especially difficult where the standards are hard to locate; to distinguish from nonpleading laws; and to differentiate by rationale(s).

In the separation of powers setting, these questions must be approached only after undertaking a distinct and detailed analysis of each relevant government's allocation of lawmaking duties. American governments differ significantly in these allocations.

In the choice of law setting, these questions can arise in circumstances involving Erie, reverse-Erie and choice of state law. The procedure/substance issues here must be approached only after undertaking a close look at functions, not labels; at the possibility of false conflicts; and without a parochial view as to the possible location or designation of the special pleading norms of other interested governments.

Keywords: Choice of Laws, Conflict of Laws, Pleading, Civil Procedure

Suggested Citation

Bartlett, Austin W. and Leonetti, Amy M. and Parness, Jeffrey A., The Substantive Elements in the New Special Pleading Laws (July 2, 2008). Nebraska Law Review, Vol. 78, No. 412, 1999. Available at SSRN: https://ssrn.com/abstract=1154761

Austin W. Bartlett

Northern Illinois University

1425 W. Lincoln Hwy
Dekalb, IL 60115-2828
United States

Amy M. Leonetti

Northern Illinois University

1425 W. Lincoln Hwy
Dekalb, IL 60115-2828
United States

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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