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What is the Erie doctrine?

Mandates that when there is diversity jurisdiction, federal courts must apply:

  • State substantive law; and
  • Federal procedural law 


What law applies when there is federal question jurisdiction?

Federal laws.

The Erie Doctrine only applies in diversity jurisdiction, not federal question jurisdiction.


What's the difference between procedural and substantive law?

Procedural: Laws that provide the process by which a case will progress.  Examples include methods of serving process or time limits for filing motions.

Substantive: Laws that provide a right.  Examples include laws that impose a duty of care.

⚠️ Note: Some laws, such as a statutes of limitations, fall in a grey area between the two.  These laws are where most issues with the Erie Doctrine reside.  The status of such statutes is dependent on the outcome determinative test (Step 2).




In a diversity jurisdiction case, assuming state common law and federal law conflict, what is the first step in Erie analysis?

Determine the law behind the primary issue, and determine whether the law is procedural, substantive, or something in the middle.

  • If the issue is substantive, apply state law.
  • If the law is procedural, apply federal law.
  • If the law is something in the middle, proceed to step two.






For Erie analysis, if the law is something in the middle and there is no federal law on point, how do you determine which law to apply?


  1. Outcome determinative test: Does the choice of law impact the outcome of the case?  If so, apply state law.
  2. Forum shopping: Would failing to apply the state law encourage people to litigate in federal court? If so, apply state law.
  3. Balance of interests: Does the state have a greater interest in having its own law applied than the federal law?  If so, apply the state law. If not, probably apply federal.


Generally, for what type of rules will the balance of interests fall in favor of the state

⚠️These are also referred to as "strong state policy" rules.

  • Remittur
  • Additur
  • Notice of claim requirements
  • Issue preclusion rules


As a general rule, are choice of law rules substantive or procedural?



As a general rule, are statutes of limitations substantive or procedural?



As a general rule, are elements of a crime or case substantive or procedural?



As a general rule, are burdens of proof substantive or procedural?



As a general rule, are rules regarding attorney's fees substantive or procedural?



 What laws apply for bankruptcy actions?

Bankrupcty actions are under federal law, so federal substantive & federal procedural will apply


What is federal common law and in which type of cases is it most likely to exist?

Federal law created through federal judges. It applies only in a narrow category of cases, such as those involving:

  • Admiralty & maritime
  • Foreign relations
  • Cases where US is a party
  • Cases between two states


In a diversity case with multiple states involved, the federal court must apply the conflict of laws principles from which state?

The state in which the federal district court is sitting


interlocutory injunctions

Injunctions issued before the trial has ended; goal is to perserve the status quo.


Elements required for a preliminary injunction

  1. D has been given notice;
  2. P will likely prevail on the merits;
  3. P will likely suffer irreparable harm w/o prelim. injunction;
  4. Balance of hardships favors an injunction;
  5. Injunction is in the public interest; and 
  6. Bond to cover damages if D is wrongfully enjoined

Note: If a party is very likely to prevail on the merits, the court may not require a strong showing of irreparable harm.

Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008).


How long does a preliminary injunction last?

For the entirety of the lawsuit


What is a temporary restraining order (TRO)?

Emergency injunction that can be issued without notice to the other party if irreparable harm would result while waiting for a preliminary injunction.


When can a TRO be granted?

  1. Specific facts demonstrate that the petitioner will suffer serious, irreparable harm w/o TRO; and 
  2. Petitioner's attorney certifies, in writing, any efforts that have been made to give notice to D, and also any reasons why notice should not be required


Differentiate between a preliminary injunction and a temporary restraining order (TRO)

TRO's can be issued without notice (unlike a preliminary injunction) if P can show that he would have suffered irreparable harm while waiting for a preliminary injunction.

The burden for harm is much higher for a TRO than a preliminary injunction.



How long does a TRO last?

14 days, or until a hearing for a preliminary injunction is held (unless extended by court)

FRCP 65(b)(2)