same-sex marriage and full faith and credit

1. same-sex marriage and full faith and credit

2. DOMA:No State … shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State…or right or claim arising from such relationship.

3. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

4. 1) Cousins marry in MA and then move to VA2) A same-sex couple marry in MA and then move to VA

5. same-sex divorce

6. Chambers v. Ormiston(R.I. 2007)

7. Erie

8. Tompkins (a PA domiciliary) sues Erie (a NY domiciliary) in NY state court concerning an accident in PACan NY use its own standard of care?Can NY use its own procedure?

9. Outstanding Questions:1) Can a state forum w/o substantive lawmaking power under Allstate use its power over procedure to displace sister state substantive law?2) How can you tell whether the sister state’s law is substantive?

10. Tompkins sues Erie in federal court in NY concerning an accident in PACan the federal court apply a federal standard of careCan the federal court use federal procedure?

11. P sues D in federal court in New York under New York lawCan the federal court apply a federal limitations period or must it apply New York’s?

12. Guaranty Trust v York(US 1945)

13. Hanna v. Plumer(US 1965)Suit in fed ct in MA under MA lawShould MA’s service rule be used or can the ct use the FRCP governing service instead?

14. “[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”

15. Could Congress pass a uniform limitations period for state law actions brought in federal court?

16. 28 U.S.C. § 2072. - Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. . . .’

17. “Under the cases construing the scope of the Enabling Act, Rule 4(d)(1) clearly passes muster. Prescribing the manner in which a defendant is to be notified that a suit has been instituted against him, it relates to the ‘practice and procedure of the district courts.’ ‘The test must be whether a rule really regulates procedure, - the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.’ Sibbach v. Wilson & Co.”

18. “Not only are nonsubstantial, or trivial, variations not likely to raise the sort of equal protection problems which troubled the Court in Erie; they are also unlikely to influence the choice of a forum. The 'outcome-determination' test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.”

19. Outstanding Questions1) Does Hanna mean what it says? Can Congress really use its power over procedure to displace state substantive law in federal court so long as what is regulated is arguably procedural?2) Do Hanna and Sibbach really mean what they say? Can a FRCP really displace state substantive law in federal court, provided that the FRCP really regulates procedure?

20. Byrd v. Blue Ridge Elec. Coop. (US 1958):“First. It was decided in Erie R. Co. v. Tompkins that the federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. We must, therefore, first examine the [state] rule … to determine whether it is bound up with these rights and obligations in such a way that its application in the federal court is required.”3) Does Byrd mean what it says – is a federal court forbidden to use its power to create procedural common law to displace state substantive law in federal court?

21. P sues D in federal court in NY under PA law. PA’s statute of limitations is bound up with the PA cause of action. A NY state court would use NY’s statute of limitations anyway.What statute of limitations should the federal court use?

22. P sues D in federal court in DelawareA Del. state court would apply Del. lawMay the fed. ct. use its own choice-of-law rule?

23. Gasperini v Center for Humanities(US 1996)

24. Federal standards:trial ct: Does the damage award “shock the conscience” of the court?Appeal: did the trial court “abuse its discretion”?

25. CPLR § 5501(c): “In reviewing a money judgment…in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.”

26. Seventh Amendment:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

27. FRCP 59"[a] new trial may be granted . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States"

28. Ginsburg:“We think it a fair conclusion that CPLR §5501(c) differs from a statutory cap principally ‘in that the maximum amount recoverable is not set by statute, but rather is determined by case law.’ …In sum, §5501(c) contains a procedural instruction…but the State's objective is manifestly substantive.”

29. Imagine that Gasperini had sued Center for Humanities under Pennsylvania law in state court in New York. Would section 5501(c) have applied?

30. Imagine that Gasperini had sued Center for Humanities under New York law in state court in Pennsylvania. Would section 5501(c) have applied?

31. Shady Grove Orthoped. Assoc. V. Allstate (U.S. 2010)

32. N. Y. Civ. Prac. Law Ann. §901(no class actions for statutory penalties)FRCP 23 has no such restriction

33. Ginsburg:The limitation was not designed with the fair conduct or efficiency of litigation in mind. …New York’s decision instead to block class-action proceedings for statutory damages therefore makes scant sense, except as a means to a manifestly substantive end: Limiting a defendant’s liability in a single lawsuit in order to prevent the exorbitant inflation of penalties—remedies the New York Legislature created with individual suits in mind.

34. Scalia:The dissent’s approach of determining whether state and federal rules conflict based on the subjective intentions of the state legislature is an enterprise destined to produce “confusion worse confounded.” It would mean, to begin with, that one State’s statute could survive pre-emption (and accordingly affect the procedures in federal court) while another State’s identical law would not, merely because its authors had different aspirations. It would also mean that district courts would have to discern, in every diversity case, the purpose behind any putatively pre-empted state procedural rule, even if its text squarely conflicts with federal law. That task will often prove arduous. Many laws further more than one aim, and the aim of others may be impossible to discern. Moreover, to the extent the dissent’s purpose-driven approach depends on its characterization of §901(b)’s aims as substantive, it would apply to many state rules ostensibly addressed to procedure.

35. Imagine that a class action for statutory penaties under Pennsylvania law had been brought in state court in New York. Would section 901 have applied?

36. Imagine that a class action for statutory penaties under New York law had been brought in state court in Pennsylvania. Would section 901 have applied?

37. Scalia: “In sum, it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule. We have held since Sibbach , and reaffirmed repeatedly, that the validity of a Federal Rule depends entirely upon whether it regulates procedure. If it does, it is authorized by §2072 and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights.”