Professional Documents
Culture Documents
I. Class Actions
A. Characteristics:
3. Typically caused by a negative value lawsuit because the recovery will be less than the
a) Negative value- Attorney would not be able to recoup fees by single case.
B. Class actions cause a due process problem because the members of the class may not be able to
1. Since there is an option to Opt Out of the class action there is less consideration for due
process.
C. Rule 23 Functions:
1. Objectively ascertainable class (a defined class is implied by the rule); (In Re Teflon)
2. Numerosity: the class is so numerous that joinder under Rule 20 of all members is
4. Typicality: The claims or defenses of the representative parties are typical of the claims
5. Adequacy of counsel and class representatives: the representative parties will fairly and
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a) Becomes a competitive process between counsels. Generally who has the most
1. Satisfied re: absent class members if they are represented by a representative party:
II. Supplemental Jurisdiction - How to get jurisdiction over joined claims. Looking at Rules 14, 19, 20, 24
A. Overview
1. A federal court can exercise supplemental jurisdiction over a secondary claim when it has
original jurisdiction over a claim and the two claims arise out of a common nucleus of
operative facts.
B. A court should decline to exercise supplemental jurisdiction where it otherwise is permissible IF:
2. The case would require the court to make needless decision on sensitive state law issues
C. 28 USC 1367
provided otherwise by Federal statute, in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States
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Constitution. Such supplemental jurisdiction shall include claims that involve the joinder
AREN'T EFFICIENT.
2. (b)[OWEN V. KROGER CODIFIED] In any civil action of which the district courts
have original jurisdiction founded solely on section 1332 of this title [28 USCS 1332],
the district courts shall not have supplemental jurisdiction under subsection (a) over
claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the
plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24
of such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332 [28 USCS 1332].
claim and added a related state law claim. (asserted by the original
plaintiff)
(2) Ancillary Jurisdiction: The right of a court that can aid and regulate
defending parties).
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a) (1) the claim raises a novel or complex issue of State law,
b) (2) the claim substantially predominates over the claim or claims over which the
c) (3) the district court has dismissed all claims over which it has original
jurisdiction, or
d) (4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction
4. (d) The period of limitations for any claim asserted under subsection (a), and for any
other claim in the same action that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be tolled while the claim is pending
and for a period of 30 days after it is dismissed unless State law provides for a longer
tolling period.
a) LAYMANS TERMS: There is a 30 day grace window for the plaintiff to refile
in state court after the dismissal of the state law claims in federal court. This
allows district courts to have some leeway in the dismissal of cases so that justice
can be served and that the plaintiff doesnt run into claim preclusion.
2. Does court have federal question or diversity over extra claims? If no, continue.
a) 1367(a)/Gibbs test - common nucleus of operative fact such that we have "one
constitutional case"
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c) Is extra claim inconsistent with diversity requirements (complete diversity and
amount in controversy)?
(1) If yes to all three, court does not have supplemental jurisdiction under
1367(b).
E. Hypo
1. Caprera is arrested by Epstein and Ruiz who are two police officers. He claims the
officers assaulted him during the arrest and sues under 42 U.S.C. Section 7983, alleging
federal constitutional right to be free of unreasonable seizures and has been violated. He
also asserts a state law claim for battery against each defendant. Asserts 4 separate
claims.
a) Rule 20(a)(2) properly joins the officers as co-defendants arising from the same
c) Since it is originally a federal question he can add the state. Capreras right to
PIC CITY!
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III. Discovery - where civil litigation attorneys make their money (fact gathering, leverage gathering -
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1. Matter
a) May have more information than what can be brought before the jury. Just has to
B. Attorney-client privilege
1. What is covered?
(1) Hypo- Person bringing a gun from shooting his wife is not a
communication.
b) Between lawyer and client(s) - Must be made between privileged persons and can
go either direction.
(1) Hypo - Kid sitting in the office - breaks attorney- client privilege.
3. Protects only communications between privileged persons (attorney and actual client)
a) Example: go into attorney's office, say I just shot someone and here's the gun.
persons bubble. Example: husband is suing someone, talks with lawyer, if wife/kid is
there, no attorney-client privilege. Make them sit outside of the room. CONFIDENCE
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a) RULE: When an attorney is retained to represent a corporation, the attorney-client
and work product privileges may extend to every employee in that corporation,
legal advice
(2) Upjohn note: Addresses both work product and attorney client privilege.
a) Rule 26(b)(5): must describe the nature of documents to the requesting party.
(1) A privilege log will usually satisfy this requirement. A privilege log
contains:
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(a) Bates range, date, from, to, CC, subject, document type,
(i) To and from is the most important part because thats how
a privilege is established
b) If privilege challenged, the judge will look at it in camera (private) and then make
a call. Generally, if you have a good reputation, you're not gonna get challenged
C. Work Product Doctrine - doctrine not a privilege. Opposing counsel may still be able to get their
hands on it.
a) Opinion Work Product or Fact Work - Anything that contains attorney opinion.
b) Non opinion work product or fact work product - More attenuated from the
b) End up with lawyers being called as witnesses (role confusion for jurors).
3. Accidental disclosure
a) More protected than it used to be. More protective now. Accidentally turn over
(1) Inadvertent disclosure still tips off party from other possible avenues of
discovery.
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a) Specific claim test - see if a specific claim has been raised. (filing a claim will
manifest a claim. Demand letters to see about settling and possibly putting
b) Ad Hoc approach - More subjective. Not requiring that some litigation is coming.
But looking to protect the integrity of the attorneys work. Protecting one
attorney take a free ride. Any time this would manifest, then it will cover. Only
c) Both require what the primary purpose of creating whatever it was. Is the primary
not in litigation.
are always doing anything with mindset of covering their butts. Where the
5. Case - Hickman v. Taylor: The case where a ship sank and a lawyer was hired to protect
against future litigation stands for the proposition that while the protective cloak of
attorney-client privilege does not extend to information that an attorney secures from a
witness while acting for his client in anticipation of litigation, an attempt, without
recollections prepared or formed by an adverse partys counsel, falls outside the arena of
discovery.
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b) Courts held that you cannot get information from them, but you can subpoena
3. A consulted but not retained expert is not discoverable, but the rules are silent on this,
4. Unconsulted experts are not mentioned in the rules, but are discoverable.
1. Rule 26(f): As soon as is practicable, but at least 21 days before a scheduling conference
magistrate judge when authorized by local rule - must issue a scheduling order:
(2) After consulting with the parties attorneys and any unrepresented parties
at a scheduling conference.
b) Strategy: ask for more than you need so that you can settle for somewhere in the
middle.
c) (b): required and permitted contents. Generally a lot of the permitted contents will
be included, like date for trial. - judge will pick the trial date and work backwards.
(1) Modify the timing of disclosures under Rules 26a and 26e1
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(2) Modify the extent of discovery
information;
(4) Include and any agreements the parties reach for asserting claims of
produced
(5) Direct that before moving for an order relating to discovery, the movant
(6) Set dates for pretrial conference and for trial; and
1. Rule 26(a)(1)(A): everything that you have to disclose up front. And if a witness comes
forth that could support your claim or defense, you have to disclose. It's an ongoing duty.
a) the name and, if known, the address and telephone number of each individual
informationthat the disclosing party may use to support its claims or defenses,
electronically stored information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support its claims or
must also make available for inspection and copying as under Rule 34 the
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disclosure, on which each computation is based, including materials bearing on
d) for inspection and copying as under Rule 34, any insurance agreement under
the judgment.
2. If a party fails to disclose required disclosures, they can be sanctioned for doing so and
C. Interrogatories
1. Governed by Rule 33
b) Upon meeting under 16(b), you're both on the same side going against the court
(1) If corporate client, anybody in the corporate who can answer the question
can answer
d) 30 days to respond.
f) If questions posed can be answered with a document, you can turn over the
document.
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D. Request for production of documents
1. Governed by Rule 34
party.
2. Rule 34(b)(2)(E)(i): document must be produced as they are kept in the usual course of
business.
E. Subpoena
of the court.
A. Zubulake: To what extent is an accessible electronic data discoverable, and who should pay for
its production?
B. Cost-shifting moves burden to requesting party. The closer to the information is to being
accessible online, the more likely cost-shifting occurs. The further the information is to being
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7. Relative benefits to the parties of obtaining the information.
1. Step 1: Identification
4. Step 4: Production
5. Step 5: Presentation
E. Hypo:
1.
c) Think of some type of grounds to object (ensure the other side is following Rule
34(b)(1)
h) When you get the motion to compel: unreasonable because cost or burden, then
argue cost-shifting.
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1. In order to request, the physical or mental condition has to be in controversy and in good
cause.
damages.
will not order a party to submit to an HIV test if the partys potential HIV status is
a) Plaintiff was hurt when the tire he was mounting exploded. Plaintiff was accused
of sharing needles and homosexual sex and Bridgestone wanted to test Sacramona
1. Once admission made, at trial, the fact is taken as true. This helps narrow the issues in
dispute at trial.
a) Defendant can admit a lot and still win. All you have to do is disprove one point
at trial
b) Plaintiff can admit stuff and still win. Burden is still on plaintiff to prove
c) Only way a party will admit a fact is if they can't deny it.
(1) If you have an argument that you could contest the fact, you won't admit,
even if the evidence is overwhelming that is likely true. You want to put
1. One day of seven hours for each deposition. Can't span more than one 24 hour period.
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2. Limit of ten depositions.
3. Requirements
a) Court reporter
b) Notice of deposition
c) You probably want to use your own office. Very rarely would you want to do it in
(1) You have home field advantage. Room set up, access to your offices,
secretaries.
(2) Your deposition, your terms. It's only a favor to give opposing counsel
d) You want to get the most knowledgeable person for the subject you need.
(a) They opposing company can send multiple people as the most
(b) Must identify that person, can't be some punk from the mail room.
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I. Discovery Abuse
1. Discovery happens all on your own, without the court overseeing it. So that leads to a lot
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2.
3.
4. You have to prove the existence of documents that you are asking for before you can
5. Rule 37(a)
a) Make a good faith effort to resolve dispute first, because the court does not really
b) Then file a motion to compel. I know you don't want to hear from me, but I've
(1) Attach some exhibits to show evidence that you've tried to resolve a
dispute.
(b) Affidavit swearing under oath that you did your best effort
c) Sanction: Loser for the motion to compel has to pay for attorney's fees, unless the
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(1) If you were substantially justified in filing motion to compel, and you lose,
d) If you win the motion to compel and the other party doesn't comply, then you
(i)
6. Ethical violation to fail to make a reasonably diligent effort to comply with a legally
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7. Ethical violations under discovery: It is a violation to obstruct a party's access to
evidence. It is a violation to hide a document that has evidentiary value (e.g., putting a
8. Abuse Tools
(2) Would be the end, unless plaintiffs file a motion to compel. Then the court
has to rule on the objection. The court issued orders compelling discovery
immediately.
(1) Use to limit scope of discovery because the scope of the case would be
narrowed.
9. Chudasama: The fraud claim greatly expanded the scope of discovery in the case. Mazda
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(a) forbidding the disclosure or discovery;
(c) prescribing a discovery method other than the one selected by the
(e) designating the persons who may be present while the discovery is
conducted;
order;
directs.
c) Discovery has to be for a proper purpose. A party can't get more than they need in
(a) (i) consistent with these rules and warranted by existing law or by
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(b) (ii) not interposed for any improper purpose, such as to harass,
litigation; and
considering the needs of the case, prior discovery in the case, the
the action.
(2) Most people skip rule 26(g) sanctions and go straight for the rule 37.
VI. Erie Doctrine: Statutory Authority is the Rules of Decision Act: 28 USC 1652: "The laws of the several
states . . . shall be regarded as rules of decision in civil actions in the courts of the United States . . ."
1. Basic Rule
(1) TIP FOR THIS QUESTION: Is the Federal Rule sufficiently broad to
address the issue? If you have to reach for more laws to justify application,
then no good. The Federal Rule is what is tested, not the FEDERAL
RULESSSS
b) If yes, apply the federal law so long as the rule is valid under the Rules Enabling
and Constitution
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(a) Did Congress have authority to do this? (Example: to regulate
(b) Did Congress delegate that authority to the Supreme Court? (to
c) If theres an important federal policy, attempt to apply both state and federal law
B. Erie Test tip: EITHER IT'S GONNA BE REALLY OBVIOUS THAT THERE IS A DIRECT
a) NY law said can't file a class action when you are seeking a penalty (some sort of
(1) The NY law was a civil procedure rule conflicting with FRCP 23
(i) The interest here would be like $48, so yeah, no teeth, that's
(a) The court couldn't figure out how the hell to apply Hanna.
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(i) Have to understand the arguments behind whether there is a
counterarguments.
(i) Rule 23 and 901(b) have a direct conflict and you have to
issue
REA
(i) Rule 23 & 901(b) provide rules for class certification and
NY 901(b) did
Erie route.
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(e) Stevenss Argument
(i) We have a direct conflict and have to do more than pay lip
service to 2072(b).
convincingly.
1. Lex loci delicti: use the law of the place where the delict [tort] was committed
a) No winner/loser
(4) When you re-file the complaint, you probably bolster the quality of the
complaint.
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(6) If voluntary dismissal is filed an hour before a motion to dismiss hearing,
limitations UNLESS the court says otherwise. You're gonna have to have
judgment.
(1) A notice of dismissal before the opposing party serves either an answer or
(7) File motion for summary judgment too early and court will deny it
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a) No winner/loser
a) Rule: The court shall grant summary judgment if the movant shows that there is
(1) Proof of the elements SJ: Elements that have to be proved at trial must be
(2) Absence of proof SJ: The nonmoving party does not have proof for one of
me motion.
(b) Movant must demonstrate from record and available facts that
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(i) Show that you asked in discovery and no one was able to
(c) Rule 56(c) TEST - Moving party must point to where in the record
(3) Disproof of an element SJ: Not only do they not have evidence, but we
A. Directed Verdict
a) Directed verdict or demurrer (state courts), but this term isn't used in federal court
nowadays
(1) No more direction from judge to jury. Takes the case away from the jury
3. You can't file a 50(b) motion if you have not filed a 50(a) motion
a) You always file a 50(a) motion. Motion is made on the fly in the middle of trial.
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(a) You have seen all of the evidence that the plaintiff has made to the
jury.
(b) 50(a) motions are rarely granted because if they are overturned on
settlement.
(1) 50(b) motions are granted more frequently because you don't have to go
A. Finality Doctrine - 28 U.S.C. 1291 The courts of appeals shall have jurisdiction from all final
1. Final decision or final judgment ends litigation on merits leaving nothing but
a) Case Management Discovery Order to split costs for discovery is not a final order.
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1. Collateral order exception elements:
a) An issue essentially unrelated to the merits of the main dispute, capable of review
b) Temporary injunction
a) Trial court certifies judgment making them satisfy the collateral order doctrine
3. Mandamus
e) Extraordinary relief
f) Requirements
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4. A court can declare an interlocutory order to be final under Rule 54(b)
a) Congestion
b) Duplication
c) Delay
d) Expense
X. Claim Preclusion
A. Requirements/Elements
1. Claim must be the same as the claim that was litigated in a previous case
2. The previously litigated claim must have resulted in a valid, final judgement on the
merits
3. The parties who litigated the previous claim must typically be the same parties who are
B. Policy
1. Efficiency
C. Case:
1. River Park, Inc. v. City of Highland Park - explains what the same claim means
a) Under Illinois law, res judicata prohibits the same parties from asserting a claim
arising out of the same transaction or the same set of operative facts after there
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(a) Judgement entered after full trial
prejudice
(b) Lack of PJ
(1) Same evidence test: two suits involve the same claim only if the evidence
needed to sustain the second suit would have sustained the first, or if the
if they arise out of the same group of operative facts or arise out of the
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(i) Less complex
(b) Bailee/bailor
(c) Assignee/assignor
(b) Trustees
(c) Guardians
(d) Fiduciaries
D. Other parties
1. Typically a judgement does not preclude non-parties from litigating identical claims.
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a) Exception: If that non-party was in "privity" with one of the parties who
actually litigated the original case or had some other legal relationship with a
party such that it would be fair to conclude that the non-party's interests were
different party and there is no legal relationship between the current and
past litigants.
legal relationship between the non-party and the party who litigated
relationship.
a) Most similar to the category which : gives preclusive effect to non-parties who
protections.
(a) such as notice that their rights might be affected in the pending
litigation or that they have the right to opt out of the litigation and
(2) Potentially applies to a broad range of cases and thus conflicts with the
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(a) Burdens courts by having them apply a more complicated test to
determine an outcome.
c) The counterclaim problem: Claim preclusion will not bar plaintiff and defendant
in one case to swap sides in a subsequent case as the claim would be different.
(1) Most states will have a compulsory counterclaim rule that will have the
that is the subject matter of the opposing party's claim; and (B)
does not require adding another party over whom the court cannot
acquire jurisdiction."
4. Assumed control over litigation. Even though not a party to the litigation.
5. Party bound by a judgement may not avoid its preclusive force by relitigating through a
proxy.
a) Bankruptcy or probate.
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A. 5 elements of issue preclusion
1. Same issue
2. Actually litigated
B. Case:
1. Felger v. Nichols: Under Maryland law, the doctrines of direct estoppel by judgement
and collateral estoppel bar parties from relitigating issues or claims that were fully heard
in a previous lawsuit.
a) Maryland does not require defendants to assert counterclaims that arise out of the
2. Panniel v. Diaz: Under New Jersey law, the doctrine of collateral estoppel may be used to
bar relitigation of an issue fully litigated and decided in an earlier binding arbitration,
3. Cambria v. Jeffery: Issue preclusion only prohibits the litigation of a fact that was a basis
of the relief, denial of relief, or other ultimate right established by the judgement
(1) Instinctually the case was already litigated and decided - Cambrias
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(a) Once plaintiff is found to be guilty doesnt need to be decided, if
could be altered.
(c) Default against issue preclusion - courts want to give the parties
(a) If there is something tied into the winner than they would
C. Notes:
1. The party against whom preclusion is sought could not, as a matter of law, have obtained
extensiveness of the procedures followed in the two courts or by factors relating to the
4. The party against whom preclusion is sought had a significantly heavier burden of
persuasion with respect to the issue in the initial action than in the subsequent action; the
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burden has shifted to his adversary; or the adversary has a significantly heavier burden
5. There is a clear and convincing need for a new determination of the issue
a) Because of the potential adverse impact of the determination on the public interest
b) Because it was not sufficiently foreseeable at the time of the initial action that the
2. Non-mutual - not same parties. One party that is different. One party has to be involved
in the litigation.
3. Case;
a) Blonder Tongue
valid
(3) Non mutual because Blonder Tongue was not involved in first case
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(a) Court ruled that this is a correct way of using issue
preclusion.
(4) General Idea: cant bar someone from having their day in court.
(a) If Blonder Toungue with a twist and jury found patent valid.
(a) Can bind the party that is the same but cannot bind
b) Parklane Hosiery Co. v. Shoe: A litigant who was not a party to a prior
(1) The plaintiff could not easily have been joined in the earlier action and
(2) Use of the judgement will not result in unfairness to the defendant
was sued for nominal damages in the first action and did
(iii) Where the judgement relied upon as a basis for the estoppel
defendants favor.
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(c) Biggest idea and problem is that it would lead to a wait and see
(1) Non mutual issue preclusion whether offensive or defensive are only
(2) Does not matter whether the court you are in accepts mutuality, requires
to litigate the issue. You have to lose before the court is going to bind you
to the decision.
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Side: Erie
1. Is federal subject matter/ supplemental jurisdiction based on diversity? (28 USC Section 1332)
Hannah pt 2 (Federal)
- Federal court must apply federal rule if it is valid under REA and constitutional (Hannah Pt.
2/Supremacy clause) In the Rules Enabling Act, Congress authorized the Supreme Court to promulgate
rules of procedure subject to the Courts review. 28 USC section 2072(a). The limitation is that the
rules shall not abridge, enlarge or modify any substantive right, section 2072(b).
- To determine which states law to apply, apply choice of law state in which district court sits
(Klaxon)
- If plaintiff and defendant from different states and transfer from one state to another.
Does the law transfer too or do you apply the state's law of where it was transferred.
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- Two different states applying state law. Can still make common law federal issue to deal
- Under modified outcome determinative test, law is substantive if applying it would lead to
- Court must apply modified outcome determinative test prospectively (Hannah pt. 1)
- Exception = Federal court must apply state substantive law, unless a public policy outweighs
policy interest in uniformity of federal/state court decisions (ie 7th Amendment) (Byrd).
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