Prof. Tidmarsh Posts Article on Procedure, Substance, and Erie on SSRN

Professor Jay Tidmarsh (Notre Dame) has recently posted an article entitled Procedure, Substance, and Erie on SSRN. Here is the abstract:

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process - in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context - a pillar on which present Erie analysis is based - is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural Erie” cases: that federal courts can apply their own rules to process a claim as long as, in a costless and outcome-neutral world, those rules do not affect the ex ante value of a claim at the time of its filing.

This article may be downloaded by visiting http://ssrn.com/abstract=1708183.

AALS Newsletter Call for Conference Information

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2011 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by December 5 to Thom Main at tmain@pacific.edu.

EDVA Transfers Case Under First-Filed Rule

Judge Rebecca Beach Smith (EDVA) applied the "first-filed" rule to transfer a patent infringement case to a New York federal court. Although the patent infringement action was properly filed in the Eastern District of Virginia, the adversary had previously filed a declaratory judgment action on the same issue in the Southern District of New York. As the first filed claim, Judge Smith concluded that it had precedence and thus the EDVA action had to be transferred to New York. The opinion is available here.