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1997 Erie Exam Question

1997 Erie Exam Question. What is the source of the federal practice?. Two possible sources? FRCivP (for Rule 68) Judge made (for American Rule). What do you do with 2 sources?. Start With FRCivP 68. Is there a conflict?. Can you come up with alternative plausible interpretations?.

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1997 Erie Exam Question

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  1. 1997 Erie Exam Question

  2. What is the source of the federal practice? • Two possible sources? • FRCivP (for Rule 68) • Judge made (for American Rule) What do you do with 2 sources?

  3. Start With FRCivP 68 Is there a conflict? Can you come up with alternative plausible interpretations? What arguments can you make for adopting one rather than the other? What are the respective state and federal interests involved?

  4. So what do you do about FRCivP 68?

  5. Is there a conflict with the “American Rule”?

  6. What is the source of the federal practice?

  7. What do we need to decide? • What are the issues? • Will there be forum shopping? • Will there be inequity?

  8. Why might there be forum shopping? Where would P want to be & why? Will applying the “American Rule” affect the outcome? Will that effect be significant? Does it predictably help one side? Will effect be apparent at normal forum choice time?

  9. Will applying American Rule lead to inequity?

  10. What else do you need to discuss before stopping?

  11. Balance of State & Federal Interests?

  12. Will applying American Rule excessively interfere with state’s regulation of primary conduct? What is primary conduct? Is there any reason to believe this rule is intended to affect primary conduct? Does this rule have the effect of changing people’s primary conduct?

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