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(Update: Bernstein posts the op-ed in full.)

Occasional POL contributor David Bernstein has an editorial in this weekend's Wall Street Journal on the New York Appellate Division case of Nonnon v. City of New York, which, in a 3-2 vote, permitted the admission of speculative unscientific evidence to defeat summary judgment because to preclude the guesswork would be to prevent potential recovery. Bernstein also comments on Volokh, and draws comment from Northwestern Law Professor Stephen Lubet questioning the extension of federal rules to what are now in the state courts. I responded:

Professor Lubet, your characterization of federalism as reflexively preferring state-court resolution over federal-court resolution is a vast oversimplification. Federalists such as Michael Greve have criticized the upside-down federalism whereby local courts are dictating national policy on matters of interstate commerce. See, in particular, Federalist No. 80, where Hamilton, in discussing Article III, quite clearly (and presciently) argues that incomplete diversity jurisdiction is necessary to prevent local courts from discriminating against out-of-state parties, a call that was unfortunately disregarded in Strawbridge v. Curtiss. I hope this also addresses Mr. Nordberg's concerns, though he is correct in implicitly noting that federal judges have not consistently applied Daubert.

I do agree with Professor Lubet that I would like to see a greater convergence in the deference that federal courts pay to state courts in civil and criminal cases, but note that one can, quite consistent with this view, argue for restricting federal habeas and increasing federal oversight of state civil court abuses. I've discussed this elsewhere in more detail, but note here that federal courts already give a ludicrous amount of deference to state civil court law that noone would tolerate in the criminal context: e.g., Erie and Rooker. A multi-billion dollar judgment that can cause massive disruption to the national economy gets far less federal review than a one-year robbery sentence issued to a recidivist.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.