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University of Pennsylvania School of Law
Wax, Amy Laura

Civil Procedure Wax Fall 2017
Civil Courts
Federal vs. States: authority is divided
Judicial: belongs to the court, dealing with the litigation
Limits: litigation is only a tiny little piece in the legal system. There are many other dispute resolutions: e.g. settlement, arbitration, mediation, administrative resolution (hearings).
Procedural vs. Substantive (legal right and obligations, comply with duties, remedies)
Civil vs. Criminal:
Civil law:
Parties: private law disputes, two private individuals or entities.
Authority: Mostly common law. But now there are more statute law, not exclusive to private sectors.
Remedies: damages, injunctions.
Criminal law:
Parties: A vindication of public interest, initiated by the government against an individual
Authority: more of statutes
Remedies: imprisonment, jail, fine.
Constitution: e.g. 7th amendment, which is not applied to state system),
Common law procedures: self-described set of rules.
Statute law procedures: e.g. Rule 1251.
Procedural codes: e.g. USC; Federal Rules of Civil Procedure: not a statute, it is the general rules of practice and procedure, which are prescribed by the U.S Supreme Court through Judicial Conference of the United States (the United States Congress has 7 months to veto). Each circuit court has their own rules to amend.
Local rules
Informal prudential rules: there are no actual cases. Explicitly assumed.
e.g. legal issue first (statutory issue first, constitutional issues last), than factual issue.
e.g. Any questions must be presented at the first resort, can’t be raised later on.
Adversary (compared with inquisitorial system)
Both have sovereign, substantive and procedural rules, court systems
General issue
Limited issue
Exclusive jurisdiction
Exclusive jurisdiction of federal courts: copyright, bankruptcy (cannot restrict the state court in common law)
State court: Congress can provide jurisdiction to state statute. Rule 1361.
Concurrent jurisdiction: e.g. Title 7 Incrimination
Federal cases (in State court): except that the statute exclude the jurisdiction of State court.
State case with diversity (in federal court): state law governs the substantive issues, the federal procedural rules governs the procedure
Court system
TrailàIntermediateàLast resort
DistrictàCircuit Courts (geographic and subject)àU.S Supreme Court
States’ highest courts decide what the State laws mean
U.S Supreme Court decide what the federal laws mean
Appeal: only final judgement can be appealed. Not interlocutory.
Pros: Issues will sometimes go away.
Cons: waste of time if is the judgment is actually reversible
28 U.S.C.1257 (State courts; appeal; certiorari): U.S Supreme Court never review pure issues of State (because each state’s highest court is the ultimate decider), but it does review the State’s judgement when it includes some matter of federal law.
e.g. State statute unconstitutional.
Choice of law: decided by Choice of Law Rules (Conflicts of Law).
Each state has its own choice of law rules, which may be common law or statute.
Each state can choose any state law at discretion.
When federal court is dealing with diversity issues, it shall follow the conflict of law of the state where it seats.
Choice of court: not required to his own geographical court.
Personal jurisdiction and venue: where can I drag the defendant.
SMJ doesn’t govern this.
Once chose the trial court, must stay within the state to appeal.
The parties have more challenges: what court, what cause of action, defense, evidence + waiver rules (may cause failure to prosecute or an involuntary dismissal)
Reason: Parties are driven by their self-interest. Minimize agency problems; Interests better served.
Organic (Marching-Textualism ):
Historicity: English law, organic process, incremental steps, not always logical or coherent. Organic systems tend to come out on top to an engineered system, complicated, can't be central planned. The court system is decentralized. Rules can be updated (but too unpredictable — opinion of AJYEA, and some updated rules does not reflect improvement)
19th Century there is a judicial activism. However, in 21st century, judges pay more attention to the statutes (the plain meaning).
Pros of the 21st way: judges are not elected, thy shall not decide too much lawmaking issues
Cons: may ignore the will of people.
Federal and States: 51 court systems, practice their own procedural rules, regardless of the substantive law of which state they are imposing.
e.g. Montana substantive law, Ohio procedural law in Ohio courts.
Authority Level
Stare decisis: Follow the precedents.
Choice of Law Rule: any courts can choose any substance law. (courts use their own procedural law). 4 possibilities:
(1) State court, state law
e.g. Ohio STC, NY STC, Ohio Law
First, look to Ohio SHC precedents: Ohio Highest Court is where the Ohio law comes from. Highest courts are the highest Jx. to apply the law. Both Ohio STC and NY STC look to Ohio SHC.
If Ohio SHC had never dealt the case before, look to SAC because they are reviewing courts. They don’t have authority to decide the law, but has the power to review the case. It is not binding in authority, but you better follow it.

’s original jurisdiction and therefore jurisdiction over Marbury’s claim cannot be exercised.
SCOTUS has original jurisdiction “in all…,” appellate jurisdiction “in all the other…”
J. Marshall: the OJ should be read as negative pregnant: the list is exclusive, just as listed; silence means negation.
If not read as negative pregnant, the list can be added by courts, then the Congress’s original jurisdiction clause intended to limit OJ power is useless. Therefore, OJ and AJ do not overlap, and the OJ clause is a ceiling.
Wax: Marshall’s logic is wrong.
Not useless: even if the list can be added, it at least list all the jurisdictions can’t be taken off.
Overlap: Natural logic shows that by the very existence of the Appellate Clause negates the notion of exclusivity between OJ and AJ. §1251: Supreme Court has original but not exclusive jurisdiction over particular matters. Implying that some original jurisdiction is shared with lower courts, which can come under appellate jurisdiction of Supreme Court eventually.
Congress ignored the ruling and reacted to this by explicitly granting the federal courts power to hear writ of mandamus cases in §1361.
Definition: The power of a court to adjudicate a case (hear, decide, issue an order, force parties to obey an order).
Federal Jurisdiction (limited jurisdiction)
Exclusive jurisdiction: certain securities-law class action, bankruptcy, patents and copyrights, actions against foreign consuls and vice-consuls, actions to recover a fine, penalty, or forfeiture under federal law, actions involving certain seizures.
§1251(a) Original & exclusive jurisdiction: over controversies between two or more states.
§1251(b) Original but not exclusive jurisdiction:
Ambassadors or other ministers of foreign states.
Controversies between U.S. and a State.
Proceedings by a state against citizens of another state or aliens.
§1254 (1) Writs of certiorari (discretionary jurisdiction granted upon petition of any party). (2) Certification by a court of appeals.
State Jurisdiction (general jurisdiction)
can hear any case that arises under law from any source, including federal cause of action.