The bitter with the sweet: Tradition, history, and limitations on federal judicial power - A case study

Notre Dame Law Review

Volumn 75, Issue 4, 2000, Pages 1291-1346

  Burbank, Stephen B ^a,b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034396337     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (342)

1. Douglas Laycock, The Triumph of Equity, LAW & CONTEMP. PROBS., Summer 1993, at 53, 53-54; see also Charles Alan Wright, The Law of Remedies as a Social Institution, 18 U. DET. MERCY L.J. 376, 382 (1955).
2. Douglas Laycock, The Triumph of Equity, LAW & CONTEMP. PROBS., Summer 1993, at 53, 53-54; see also Charles Alan Wright, The Law of Remedies as a Social Institution, 18 U. DET. MERCY L.J. 376, 382 (1955).
3. Fleming James, Jr., Right to Jury Trial in Civil Actions, 72 YALE L.J. 655, 664 (1963).
4. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1292 (1976).
5. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 7 (1982); Richard L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988); Thomas D. Rowe, Jr., No Final Victories: The Incompleteness of Equity's Triumph in Federal Public Law, LAW & CONTEMP. PROBS., Summer 1993, at 105; Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1468-70 (1987) (book review).
6. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 7 (1982); Richard L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988); Thomas D. Rowe, Jr., No Final Victories: The Incompleteness of Equity's Triumph in Federal Public Law, LAW & CONTEMP. PROBS., Summer 1993, at 105; Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1468-70 (1987) (book review).
7. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 7 (1982); Richard L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988); Thomas D. Rowe, Jr., No Final Victories: The Incompleteness of Equity's Triumph in Federal Public Law, LAW & CONTEMP. PROBS., Summer 1993, at 105; Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1468-70 (1987) (book review).
8. See Abram Chayes, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 7 (1982); Richard L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988); Thomas D. Rowe, Jr., No Final Victories: The Incompleteness of Equity's Triumph in Federal Public Law, LAW & CONTEMP. PROBS., Summer 1993, at 105; Stephen B. Burbank, The Costs of Complexity, 85 MICH. L. REV. 1463, 1468-70 (1987) (book review).
9. See, e.g., Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000); Alden v. Maine, 119 S. Ct. 2240 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999); City of Boerne v. Flores, 521 U.S. 507 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996).
10. See DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE (1991).
11. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. PITT. L. REV. 725 (1989); Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909 (1987).
12. See Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. PITT. L. REV. 725 (1989); Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. PA. L. REV. 909 (1987).
13. 304 U.S. 64 (1938).
14. 326 U.S. 310 (1945). "For many years, and perhaps still today, [the emphasis in Civil Procedure courses on the constitutional limitations on state court jurisdiction] could also be explained in part by the utility function of law professors: the desire of most of us to teach at least some constitutional law." Stephen B. Burbank, Jurisdiction to Adjudicate: End of the Century or Beginning of the Millennium?, 7 TULANE J. INT'L & COMP. L. 111, 112-13 (1999).
15. See Stephen B. Burbank & Linda J. Silberman, Civil Procedure in Comparative Context: The United States of America, 45 AM. J. COMP. L. 675, 699-704 (1997); Stephen B. Burbank, Procedure and Power, 46 J. LEGAL EDUC. 513 (1996).
16. See Stephen B. Burbank & Linda J. Silberman, Civil Procedure in Comparative Context: The United States of America, 45 AM. J. COMP. L. 675, 699-704 (1997); Stephen B. Burbank, Procedure and Power, 46 J. LEGAL EDUC. 513 (1996).
17. See Stephen B. Burbank, Afterwords: A Response to Professor Hazard and a Comment on Marrese, 70 CORNELL L. REV. 659, 662 (1985).
18. See International Shoe, 326 U.S. at 322-26 (Black, J.). "Superimposing the natural justice concept on the Constitution's specific prohibitions could operate as a drastic abridgment of democratic safeguards they embody, such as freedom of speech, press and religion, and the right to counsel. This has already happened." Id. at 325-26 (citing Betts v. Brady, 316 U.S. 455 (1942)).
19. 495 U.S. 604 (1990).
20. See id. at 622-27 (Scalia, J., plurality opinion); id. at 628-40 (Brennan, J., concurring in the judgment); see also infra text accompanying notes 105-12.
21. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & SOC. INQUIRY 679 (1999). The Business of the Supreme Court was designed to advance an extensive political agenda that included constraining the reach of the conservative Supreme Court, limiting the ability of corporate litigants to exploit federal jurisdiction, abolishing the doctrine of Swift v. Tyson . . ., blocking passage of the proposed declaratory-judgment act, expanding substantially the issues on which the lower federal courts would defer to state courts, and justifying a series of progressive legislative proposals to restrict the jurisdiction and alter the structure of the national judiciary. Id. at 684; see also id. at 700-01. For the collaborative effort of Frankfurter and Justice Brandeis to overrule Swift by statute, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1109-10 & n.433 (1982).
22. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & SOC. INQUIRY 679 (1999). The Business of the Supreme Court was designed to advance an extensive political agenda that included constraining the reach of the conservative Supreme Court, limiting the ability of corporate litigants to exploit federal jurisdiction, abolishing the doctrine of Swift v. Tyson . . ., blocking passage of the proposed declaratory-judgment act, expanding substantially the issues on which the lower federal courts would defer to state courts, and justifying a series of progressive legislative proposals to restrict the jurisdiction and alter the structure of the national judiciary. Id. at 684; see also id. at 700-01. For the collaborative effort of Frankfurter and Justice Brandeis to overrule Swift by statute, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1109-10 & n.433 (1982).
23. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & SOC. INQUIRY 679 (1999). The Business of the Supreme Court was designed to advance an extensive political agenda that included constraining the reach of the conservative Supreme Court, limiting the ability of corporate litigants to exploit federal jurisdiction, abolishing the doctrine of Swift v. Tyson . . ., blocking passage of the proposed declaratory-judgment act, expanding substantially the issues on which the lower federal courts would defer to state courts, and justifying a series of progressive legislative proposals to restrict the jurisdiction and alter the structure of the national judiciary. Id. at 684; see also id. at 700-01. For the collaborative effort of Frankfurter and Justice Brandeis to overrule Swift by statute, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1109-10 & n.433 (1982).
24. See Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & SOC. INQUIRY 679 (1999). The Business of the Supreme Court was designed to advance an extensive political agenda that included constraining the reach of the conservative Supreme Court, limiting the ability of corporate litigants to exploit federal jurisdiction, abolishing the doctrine of Swift v. Tyson . . ., blocking passage of the proposed declaratory-judgment act, expanding substantially the issues on which the lower federal courts would defer to state courts, and justifying a series of progressive legislative proposals to restrict the jurisdiction and alter the structure of the national judiciary. Id. at 684; see also id. at 700-01. For the collaborative effort of Frankfurter and Justice Brandeis to overrule Swift by statute, see Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1109-10 & n.433 (1982).
25. James, supra note 2, at 664; see also supra text accompanying note 2.
26. See Alan Watson, Legal Change: Sources of Law and Legal Culture, 131 U. PA. L. REV. 1121, 1134-46 (1983).
27. Laycock, supra note 1, at 78; see also David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 580 (1985). For a recent decision that relies on tradition to restrict the power of the federal courts to dismiss on abstention grounds a case seeking only money damages, but that appears to approve a stay if abstention is otherwise appropriate, see Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996). Because it is not clear that dismissal and stay are functionally distinguishable for these purposes, see Lewis Yelin, Note, Burford Abstention in Actions for Damages, 99 COLUM. L. REV. 1871 (1999), the case may represent a knowing wink in the direction of, rather than an effort to honor, separation of powers.
28. Laycock, supra note 1, at 78; see also David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 580 (1985). For a recent decision that relies on tradition to restrict the power of the federal courts to dismiss on abstention grounds a case seeking only money damages, but that appears to approve a stay if abstention is otherwise appropriate, see Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996). Because it is not clear that dismissal and stay are functionally distinguishable for these purposes, see Lewis Yelin, Note, Burford Abstention in Actions for Damages, 99 COLUM. L. REV. 1871 (1999), the case may represent a knowing wink in the direction of, rather than an effort to honor, separation of powers.
29. See LAYCOCK, supra note 6, at 11-12. History has its claims, and lawyers should understand the history of equity. But law and equity have been merged for half a century in federal courts and for well over a century in many states. The legal or equitable origin of a remedy should no longer be the starting point for analysis. Id.
30. Laycock, supra note 1, at 80.
31. Burnham v. Superior Court, 495 U.S. 604, 621 (1990) (Scalia, J., plurality opinion).
32. 119 S. Ct. 1961 (1999).
33. See The Supreme Court, 1998 Term - Leading Cases, 113 HARV. L. REV. 200, 317 (1999) [hereinafter Leading Cases] ("rest[ing] its decision on a cramped understanding of the equitable powers of federal courts"); see also id. at 326 (stating that a "formalistic interpretation of equity jurisdiction . . . was inappropriate even from an originalist perspective").
34. See The Supreme Court, 1998 Term - Leading Cases, 113 HARV. L. REV. 200, 317 (1999) [hereinafter Leading Cases] ("rest[ing] its decision on a cramped understanding of the equitable powers of federal courts"); see also id. at 326 (stating that a "formalistic interpretation of equity jurisdiction . . . was inappropriate even from an originalist perspective").
35. Moreover, there is room for regret in the quality of advocacy, particularly that provided by the United States as amicus curiae. See infra notes 123, 232, 266.
36. See infra text accompanying notes 99-122.
37. See infra text accompanying notes 174-232.
38. See infra text accompanying notes 129-232.
39. See infra text accompanying notes 233-89.
40. See Petitioners' Brief at 3, Grupo Mexicano (No. 98-231).
41. See id.
42. See id.
43. See id.
44. According to Alliance's complaint, "[t]he Notes are pari passu with all other unsecured and unsubordinated GMD debt and the Note instrument prohibits GMD from incurring any secured debt without the Notes also becoming equally and ratably secured, with exceptions not relevant here." Id. at *29aa.
45. See id. at 2 n.2.
46. See id. GMD's June 1997 Form 20-F filing with the Securities and Exchange, Commission revealed that its current liabilities (debts of approximately $450 million in addition to the Financing Notes) exceeded its current assets and that there was "substantial doubt" about its ability to continue as a going concern. See Grupo Mexicano, 119 S. Ct. at 1964-65.
47. See Petitioners' Brief at 4, Grupo Mexicano (No. 98-231).
48. See id. The precise details of the Toll Road Rescue Program remained uncertain even after final judgment was entered by the district court. See infra text accompanying note 261.
49. See Petitioners' Brief at 5, Grupo Mexicano (No. 98-231). GMD's October press release indicated that during the first nine months of 1997, it had revenues of approximately $119 million but an expected loss of $802 million and a negative net worth of $214 million.
50. See id. GMD estimated the receipt of approximately $309 million under the Toll Road Rescue Program.
51. See id. at 5-6.
52. See id. at 6.
53. Id. at *23aa. Alliance's complaint also requested that the district court "requir[e] defendants to deposit the [Toll Road] Notes into an appropriate trust established under Mexican Law and approved by the Court." Id. at *31aa.
54. Id. at *1aa. Affidavits and other papers filed in connection with the hearings revealed that GMD had assigned between $214 million and $258 million of its interest in the Toll Road Notes, that it intended to make additional assignments, and that its plans called for only $5.5 million of its interest in the Toll Road Notes to be available for satisfaction of its indebtedness on the Financing Notes. See Respondents' Brief at 4, Grupo Mexicano (No. 98-231).
55. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 698 (2d Cir. 1998), rev'd, 119 S. Ct. 1961 (1999). The order granting the preliminary injunction provided that "nothing contained herein shall prohibit the defendants from commencing any insolvency proceedings under any applicable law." Respondents' Brief at 6, Grupo Mexicano (No. 98-231). The district court declined to require the establishment of a trust in Mexico, observing that it was not inclined "to start running things in Mexico" and that other interested parties were not before the court. Id.
56. See Petitioners' Brief at *1aa, Grupo Mexicano (No. 98-231).
57. See Alliance Bond Fund, 143 F.3d at 697. For a review of the state of the law prior to Grupo Mexicano, see In re Estate of Ferdinand Marcos, 25 F.3d 1467, 1476-80 (9th Cir. 1994).
58. Alliance Bond Fund, 143 F.3d at 692. According to the Court of Appeals, Rule 64 did not authorize the preliminary injunction because New York law does not permit preliminary injunctions in actions seeking only a sum of money and New York's attachment statute reaches only property that is located in the state. See id. at 693.
59. Id. at 696.
60. See id. at 697. Although it rejected GMD's argument that, on the assumption of power to issue such an order, intent to frustrate an eventual judgment should be required, the court of appeals observed that "[t]he plain import of Judge Martin's findings is that the actions of GMD were less than benign." Id. "Judge Martin clearly believed that GMD was improperly establishing a priority of creditors," and, in the court of appeals's view, "GMD's duplicity in disclosing the full extent of its assignments further supports this conclusion." Id.
61. Petitioners' Brief at *1aa, Grupo Mexicano (No. 98-231).
62. See id. at 7 & n.4.
63. See Respondents' Brief in Opposition to Petition for Writ of Certiorari at 4 n.3, Grupo Mexicano (No. 98-231); Respondents' Brief at 12-20, Grupo Mexicano (No. 98-231).
64. Grupo Mexicano, 119 S. Ct. at 1967.
65. Id.
66. See infra text accompanying note 99.
67. Grupo Mexicano, 119 S. Ct. at 1968. In a footnote, the Court stated, Although this is a diversity case, respondents' complaint sought the injunction pursuant to Rule 65, and the Second Circuit's decision was based on that rule and on federal equity principles. Petitioners argue for the first time before this Court that under Erie the availability of this injunction under Rule 65 should be determined by the law of the forum State (in this case New York). Because this argument was neither raised nor considered below, we decline to consider it. Id. at 1968 n.3 (citation omitted).
68. Id. at 1968 (quoting Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939)).
69. Id. (quoting 11A WRIGHT, MILLER, & KANE, infra note 161, § 2941, at 31).
70. Id.
71. See Brief for the United States as Amicus Curiae Supporting Respondents at 13-14, Grupo Mexicano (No. 98-231). "This remedy was used (among other purposes) to permit a judgment creditor to discover the debtor's assets, to reach equitable interests not subject to execution at law, and to set aside fraudulent conveyances." Grupo Mexicano, 119 S. Ct. at 1968.
72. Grupo Mexicano, 119 S. Ct. at 1968.
73. Id.
74. Id. at 1969.
75. Id. (quoting 1 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 12, at 14-15 (1836)).
76. Id.
77. Id. at 1970 (quoting id. at 1979 (Ginsburg, J., dissenting)).
78. Id. at 1970 (quoting id. at 1979 (Ginsburg, J., dissenting)).
79. Id.
80. Id. (quoting id. at 1977-78 (Ginsburg, J., dissenting)).
81. Id. (quoting id. at 1977-78 (Ginsburg, J., dissenting)).
82. Id.
83. Id. The Court noted that no one had raised the potential applicability of Federal Rule of Civil Procedure 18(b) and declined, therefore, to consider it, while noting that "it says nothing about preliminary relief, and specifically reserves substantive rights (as did the Rules Enabling Act, see 28 U.S.C. § 2072(b))." Id. Rule 18(b) provides: Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. FED. R. CIV. PRO 18(b). The Court's doubts were well founded. The Rule, which has not been amended since 1938, applies "only to cases where there are at least two distinct claims or causes of action and not to a case that involves only one cause of action which may give rise to legal or equitable relief or both." 3A JAMES WM. MOORE & JOSEPH FRIEDMAN, MOORE'S FEDERAL PRACTICE ¶ 18.03 (1938). Moreover, fraudulent conveyance law requires jurisdiction over the property or the transferee. See Rhonda Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 WASH. L. REV. 257, 269 n.33 (1992).
84. Id. The Court noted that no one had raised the potential applicability of Federal Rule of Civil Procedure 18(b) and declined, therefore, to consider it, while noting that "it says nothing about preliminary relief, and specifically reserves substantive rights (as did the Rules Enabling Act, see 28 U.S.C. § 2072(b))." Id. Rule 18(b) provides: Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. FED. R. CIV. PRO 18(b). The Court's doubts were well founded. The Rule, which has not been amended since 1938, applies "only to cases where there are at least two distinct claims or causes of action and not to a case that involves only one cause of action which may give rise to legal or equitable relief or both." 3A JAMES WM. MOORE & JOSEPH FRIEDMAN, MOORE'S FEDERAL PRACTICE ¶ 18.03 (1938). Moreover, fraudulent conveyance law requires jurisdiction over the property or the transferee. See Rhonda Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 WASH. L. REV. 257, 269 n.33 (1992).
85. Id. The Court noted that no one had raised the potential applicability of Federal Rule of Civil Procedure 18(b) and declined, therefore, to consider it, while noting that "it says nothing about preliminary relief, and specifically reserves substantive rights (as did the Rules Enabling Act, see 28 U.S.C. § 2072(b))." Id. Rule 18(b) provides: Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. FED. R. CIV. PRO 18(b). The Court's doubts were well founded. The Rule, which has not been amended since 1938, applies "only to cases where there are at least two distinct claims or causes of action and not to a case that involves only one cause of action which may give rise to legal or equitable relief or both." 3A JAMES WM. MOORE & JOSEPH FRIEDMAN, MOORE'S FEDERAL PRACTICE ¶ 18.03 (1938). Moreover, fraudulent conveyance law requires jurisdiction over the property or the transferee. See Rhonda Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 WASH. L. REV. 257, 269 n.33 (1992).
86. Id. The Court noted that no one had raised the potential applicability of Federal Rule of Civil Procedure 18(b) and declined, therefore, to consider it, while noting that "it says nothing about preliminary relief, and specifically reserves substantive rights (as did the Rules Enabling Act, see 28 U.S.C. § 2072(b))." Id. Rule 18(b) provides: Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money. FED. R. CIV. PRO 18(b). The Court's doubts were well founded. The Rule, which has not been amended since 1938, applies "only to cases where there are at least two distinct claims or causes of action and not to a case that involves only one cause of action which may give rise to legal or equitable relief or both." 3A JAMES WM. MOORE & JOSEPH FRIEDMAN, MOORE'S FEDERAL PRACTICE ¶ 18.03 (1938). Moreover, fraudulent conveyance law requires jurisdiction over the property or the transferee. See Rhonda Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 WASH. L. REV. 257, 269 n.33 (1992).
87. Grupo Mexicano, 119 S. Ct. at 1971.
88. See id. at 1971 (distinguishing Deckert v. Independence Shares Corp., 311 U.S. 282 (1940)).
89. See id. at 1971-72 (distinguishing United States v. First Nat'l City Bank, 379 U.S. 378 (1965)).
90. Id. at 1972 (quoting De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 223 (1945)).
91. See Mareva Compania Naviera S.A. v. International Bulkcarriers SA., 2 Lloyd's Rep. 509 (Eng. 1975); see also Nippon Yusen Kaisha v. Karageorgis, 1 W.L.R. 1093 (Eng. 1975), Jet West Ltd. v. Haddican, 2 All E.R. 545 (Eng. 1992). [T]he Mareva injunction was introduced in the 1970s because the courts held dial they must necessarily have jurisdition and did have jurisdiction to prevent parties to actions frustrating their orders by moving assets out of the jurisdiction, or dissipating assets in one way or another, with a view to making themselves proof against a future judgment. Id. at 547.
92. Grupo Mexicano, 119 S. Ct. at 1972.
93. Id. at 1973.
94. Id.
95. See id. The United States suggests that the factors supporting such a remedy include simplicity and uniformity of procedure; preservation of the court's ability to render a judgment that will prove enforceable; prevention of inequitable conduct on the part of defendants; avoiding disparities between defendants that have assets within the jurisdiction (which would be subject to pre-judgment attachment "at law") and those that do not; avoiding the necessity for plaintiffs to locate a forum in which the defendant has substantial assets; and, in an age of easy global mobility of capital, preserving the attractiveness of the United States as a center for financial transactions. Id. (quoting Brief for the United States as Amicus Curiae Supporting Respondents at 16, Grupo Mexicano (No. 98-231)).
96. Id.
97. Id.
98. Id. at 1974.
99. Id. The Court expressed concern about promoting a "'race to the courthouse' in cases involving insolvent or near-insolvent debtors," id., and about "unregulated competition among the creditors of a struggling debtor," id. at 1974 n.11. It noted in that regard reports of the rapid proliferation of Mareva injunctions in England. See id. at 1974.
100. Id. at 1974.
101. Id. at 1975 (footnote omitted).
102. Id. at 1975-76 (Ginsburg, J., dissenting); see also id. at 1978.
103. Id. at 1976.
104. Id. at 1976-77.
105. Id. at 1977.
106. Id.
107. Id.
108. Id. at 1978 (quoting Iraqi Ministry of Defence v. Arcepey Shipping Co., 1 All E.R. 480, 484-87 (1979)).
109. Id. at 1979.
110. Id.
111. Id. (quoting Payne v. Hook, 74 U.S. (7 Wall.) 425, 431 (1868)).
112. See infra text accompanying notes 129-48.
113. See supra text accompanying note 63; infra text accompanying notes 127, 150.
114. See supra text accompanying notes 63, 70; infra text accompanying notes 127, 131, 149-50.
115. Both the Court and the dissenting Justices relied on the formulation in Atlas Life Insurance Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939), that is quoted supra text accompanying note 57. See Grupo Mexicano, 119 S. Ct. at 1968; id. at 1976 (Ginsburg, J., dissenting).
116. Grupo Mexicano, 119 S. Ct. at 1968.
117. Id. at 1970.
118. Id. at 1969.
119. See id. at 1975-79 (Ginsburg, J., dissenting).
120. See id. at 1976-77 (Ginsburg, J., dissenting); see also supra text accompanying notes 87-88.
121. 495 U.S. 604 (1990).
122. See supra text accompanying note 13.
123. Burnham, 495 U.S. at 618 (Scalia, J., plurality opinion) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U.S. 457, 463. See also Holmes, J., in McDonald v. Mabee, 243 U.S. 90, 91. International Shoe, 326 U.S. at 316. For some of the problems created by this borrowing, for a problem of substantive due process, from the jurisprudence of procedural due process, see Burbank, supra note 9, at 113-14, 116.
124. Burnham, 495 U.S. at 621 (Scalia, J., plurality opinion).
125. Id. at 608-22 (Scalia, J., plurality opinion).
126. See id. at 628-40 (Brennan, J., concurring in the judgment).
127. See id. at 628 (White, J., concurring in part and concurring in the judgment); id. at 640 (Stevens, J., concurring in the judgment).
128. Supra text accompanying note 63.
129. See Grupo Mexicano, 119 S. Ct. at 1976-77 (Ginsburg, J., dissenting).
130. Id. at 1974.
131. Id. at 1973.
132. See Rowe, supra note 4, at 105-09.
133. See generally FELIX FRANKFURTER & NATHAN GREENE, THE LABOR INJUNCTION (1930).
134. See Brown v. Board of Educ., 347 U.S. 483 (1954).
135. Robert F. Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN. L. REV. 661, 661 (1978).
136. Id. at 663.
137. Id. at 674.
138. The Court's quotation from Story in Grupo Mexicano, 119 S. Ct. at 1969, is revealing in that regard. Story went "out of his way to blast the unconstrained and moralizing license of early equity." PETER CHARLES HOFFER, THE LAW'S CONSCIENCE 82 (1990). Hoffer suggests that Story was concerned lest "a chancellor troubled by conscience . . . reach out beyond the suit before him to reorder social and economic relationships in the society as a whole" and lest "[s]uch systemic, institutional relief . . . overthrow social custom and political structures and tumble the entire judicial system into the cauldron of political crisis." Id. Blackstone's (and Story's) grudging view of equity had earlier been criticized by Pomeroy. See 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE AS ADMINISTERED IN THE UNITED STATES 76 (Spencer W. Symons ed., 5th ed. 1941). Student commentary on Grupo Mexicano notes this fact, see Leading Cases, supra note 23, at 323, without, however, also noting that Pomeroy's description of creditors' suits supported the position taken by the Court, see 4 POMEROY, supra, § 1415, at 1065. For an indication of the influence of Grupo Mexicano in this aspect, see Johnson v. Collins Entertainment Co., 199 F.3d 710, 727 (4th Cir. 1999).
139. The Court's quotation from Story in Grupo Mexicano, 119 S. Ct. at 1969, is revealing in that regard. Story went "out of his way to blast the unconstrained and moralizing license of early equity." PETER CHARLES HOFFER, THE LAW'S CONSCIENCE 82 (1990). Hoffer suggests that Story was concerned lest "a chancellor troubled by conscience . . . reach out beyond the suit before him to reorder social and economic relationships in the society as a whole" and lest "[s]uch systemic, institutional relief . . . overthrow social custom and political structures and tumble the entire judicial system into the cauldron of political crisis." Id. Blackstone's (and Story's) grudging view of equity had earlier been criticized by Pomeroy. See 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE AS ADMINISTERED IN THE UNITED STATES 76 (Spencer W. Symons ed., 5th ed. 1941). Student commentary on Grupo Mexicano notes this fact, see Leading Cases, supra note 23, at 323, without, however, also noting that Pomeroy's description of creditors' suits supported the position taken by the Court, see 4 POMEROY, supra, § 1415, at 1065. For an indication of the influence of Grupo Mexicano in this aspect, see Johnson v. Collins Entertainment Co., 199 F.3d 710, 727 (4th Cir. 1999).
140. The Court's quotation from Story in Grupo Mexicano, 119 S. Ct. at 1969, is revealing in that regard. Story went "out of his way to blast the unconstrained and moralizing license of early equity." PETER CHARLES HOFFER, THE LAW'S CONSCIENCE 82 (1990). Hoffer suggests that Story was concerned lest "a chancellor troubled by conscience . . . reach out beyond the suit before him to reorder social and economic relationships in the society as a whole" and lest "[s]uch systemic, institutional relief . . . overthrow social custom and political structures and tumble the entire judicial system into the cauldron of political crisis." Id. Blackstone's (and Story's) grudging view of equity had earlier been criticized by Pomeroy. See 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE AS ADMINISTERED IN THE UNITED STATES 76 (Spencer W. Symons ed., 5th ed. 1941). Student commentary on Grupo Mexicano notes this fact, see Leading Cases, supra note 23, at 323, without, however, also noting that Pomeroy's description of creditors' suits supported the position taken by the Court, see 4 POMEROY, supra, § 1415, at 1065. For an indication of the influence of Grupo Mexicano in this aspect, see Johnson v. Collins Entertainment Co., 199 F.3d 710, 727 (4th Cir. 1999).
141. Grupo Mexicano, 119 S. Ct. at 1968. In explaining why the amicus brief of the United States chose not to pursue the possibility that there were exceptions to the rule in equity, the Solicitor General termed "any such debate . . . an arid one," attributing the rule itself to the felt need to preserve boundaries between law and equity, a need that disappeared with their merger. Brief for the United States at 14, Grupo Mexicano (No. 98-231); see also id. at 9, 14-15.
142. Grupo Mexicano, 119 S. Ct. at 1968. The existence or non-existence of such an interest is also relevant to the procedural protections required by due process in connection with prejudgment attachment. See Connecticut v. Doehr, 501 U.S. 1, 16 (1991).
143. Grupo Mexicano, 119 S. Ct. at 1973.
144. Id. at 1973-74.
145. Cf. Leading Cases, supra note 23, at 323 n.63 ("The applicability of historical exceptions . . . is exactly the sort of issue that should have concerned this Court, given its attention to the particular nature of the relief 'traditionally accorded by courts of equity.'") (citation omitted).
146. See Grupo Mexicano, 119 S. Ct. at 1977 (Ginsburg, J., dissenting); see also supra text accompanying note 90.
147. 304 U.S. 64 (1938).
148. See Petitioners' Brief at 18-30, Grupo Mexicano (No. 98-231).
149. See Grupo Mexicano, 119 S. Ct. at 1968 n.3.
150. See supra note 47.
151. FED. R. Civ. P. 64. At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action. Id.
152. Id.
153. Grupo Mexicano, 119 S. Ct. at 1977 (Ginsburg, J., dissenting). The dissent drew on Wasserman, supra note 70, which describes the respects in which prejudgment attachment is both more and less powerful than a preliminary injunction as a weapon in the hands of putative creditors. See id. at 276-85. As Professor Wasserman would surely acknowledge, whether a preliminary injunction is "less heavy-handed" than prejudgment attachment depends upon one's perspective, and it also depends upon the particular state law governing attachment. Apart from cases in which assets are located outside the jurisdiction and thus not subject to attachment, that remedy may be confined to particular types of cases or to particular types of property, or it may be available only on the posting of a substantial bond, any of which could make it less attractive to putative creditors than a preliminary injunction. See Wasserman, supra note 70, at 276-80; Note, Equity - Hoxworth v. Binder, Robinson & Co., Inc.: Use of a Preliminary Injunction to Secure a Future Damage Remedy, 21 MEMPHIS ST. U. L. REV. 773, 776-78 (1991); see also EBSCO Indus., Inc. v. Lilly, 840 F.2d 333, 336 (6th Cir. 1988). But see infra note 144 (injunction in aid of attachment). "A preliminary injunction to secure a later damage judgment interferes with a defendant's property before trial, bypasses more restricted prejudgment remedies such as attachment, and may prefer plaintiff over other creditors." LAYCOCK, supra note 6, at 77.
154. See Wasserman, supra note 70, at 282-84, 327 n.312.
155. See Grupo Mexicano, 119 S. Ct. at 1968; see also United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 489, 499-501 (4th Cir. 1999) (dictum); supra text accompanying note 62. I assume that no one would seek to avoid Rule 64 on the argument that, not being territorially confined, a preliminary injunction is not "corresponding or equivalent" to remedies like attachment that are so confined, particularly when it is recalled that the situs of property is manipulable. Cf. Shaffer v. Heitner, 433 U.S. 186, 192 (1977) (adjudicating constitutionality of jurisdiction under Delaware statute that "makes Delaware the situs of ownership of all stock in Delaware corporations").
156. GMD asserted that the preliminary injunction "interfered with [its] efforts to restructure its debt and substantially impaired [its] ability to continue its operations in the ordinary course of business." Petitioners' Brief at 7, Grupo Mexicano (No. 98-231).
157. See infra text accompanying note 261.
158. See supra note 43 and accompanying text. Professor Wasserman acknowledges that "[w]here the property in issue is a bank account, an attachment of the account and a preliminary injunction barring the defendant from drawing on the account would be equally intrusive." Wasserman, supra note 70, at 300 n.164; see also George A. Bermann, Provisional Relief in Transnational Litigation, 35 COLUM. J. TRANSNAT'L L. 553, 563 (1997) (stating that it "may well produce the same practical effect"). 141 See Lewis v. West Side Trust & Sav. Bank, 6 N.E.2d 481, 484 (Ill. App. Ct. 1937); see also In re Fredeman Litig., 843 F.2d 821, 826 (5th Cir. 1988) ("This preliminary injunction . . . is in the nature of an attachment whose availability is governed by Federal Rule of Civil Procedure 64.").
159. Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1521 (11th Cir. 1994). But see id. at 1525 (Carnes, J., concurring in part and dissenting in part) ("[O]ne should not be quick to lend the majority a retriever the next time it goes duck-hunting . . . ."). This disagreement, however, arose from the question in that case whether a constructive trust was an available remedy under state law, on which the majority and dissenter disagreed. See infra note 146.
160. See ROBERT WYNESS MILLAR, CIVIL PROCEDURE OF THE TRIAL COURT IN HISTORICAL PERSPECTIVE 511-15 (1952). In a case sustaining the power of the circuit court of the district of Vermont to adopt by equity rule Vermont law providing for a writ of sequestration that differed from the writ in traditional equity practice and functioned as an attachment, Justice Blatchford, sitting on circuit, observed, "It is a mesne security, given pendente lite, operating, in that regard and to that end, like a provisional injunction, or a temporary receivership, or a writ of ne exeat, or the filing of a lis pendens." Steam Stone Cutter Co. v. Jones, 13 F. 567, 582 (C.C.D. Vt. 1882). With all the Latin in this quotation, requiring italics, I had best point out the court's analogy to "a provisional injunction." On the traditional use of the writ of sequestration in equity, see Walter Wheeler Cook, The Powers of Courts of Equity (pt. II), 15 COLUM. L. REV. 106, 110-11 (1915). In the course of thoroughly devastating the traditional in personam/in rem distinction between law and equity in connection with the enforcement of judgments, Professor Cook observed, "Apparently the end of the evolution along these lines with its tendency to eliminate the differences between legal and equitable procedure where the end sought is the same - to obtain payment of a sum of money - has not yet been reached." Id. at 117. Cook might thus have approved of Rules 64 and 69, but certainly not if they could easily be evaded by resort to a label.
161. See ROBERT WYNESS MILLAR, CIVIL PROCEDURE OF THE TRIAL COURT IN HISTORICAL PERSPECTIVE 511-15 (1952). In a case sustaining the power of the circuit court of the district of Vermont to adopt by equity rule Vermont law providing for a writ of sequestration that differed from the writ in traditional equity practice and functioned as an attachment, Justice Blatchford, sitting on circuit, observed, "It is a mesne security, given pendente lite, operating, in that regard and to that end, like a provisional injunction, or a temporary receivership, or a writ of ne exeat, or the filing of a lis pendens." Steam Stone Cutter Co. v. Jones, 13 F. 567, 582 (C.C.D. Vt. 1882). With all the Latin in this quotation, requiring italics, I had best point out the court's analogy to "a provisional injunction." On the traditional use of the writ of sequestration in equity, see Walter Wheeler Cook, The Powers of Courts of Equity (pt. II), 15 COLUM. L. REV. 106, 110-11 (1915). In the course of thoroughly devastating the traditional in personam/in rem distinction between law and equity in connection with the enforcement of judgments, Professor Cook observed, "Apparently the end of the evolution along these lines with its tendency to eliminate the differences between legal and equitable procedure where the end sought is the same - to obtain payment of a sum of money - has not yet been reached." Id. at 117. Cook might thus have approved of Rules 64 and 69, but certainly not if they could easily be evaded by resort to a label.
162. See ROBERT WYNESS MILLAR, CIVIL PROCEDURE OF THE TRIAL COURT IN HISTORICAL PERSPECTIVE 511-15 (1952). In a case sustaining the power of the circuit court of the district of Vermont to adopt by equity rule Vermont law providing for a writ of sequestration that differed from the writ in traditional equity practice and functioned as an attachment, Justice Blatchford, sitting on circuit, observed, "It is a mesne security, given pendente lite, operating, in that regard and to that end, like a provisional injunction, or a temporary receivership, or a writ of ne exeat, or the filing of a lis pendens." Steam Stone Cutter Co. v. Jones, 13 F. 567, 582 (C.C.D. Vt. 1882). With all the Latin in this quotation, requiring italics, I had best point out the court's analogy to "a provisional injunction." On the traditional use of the writ of sequestration in equity, see Walter Wheeler Cook, The Powers of Courts of Equity (pt. II), 15 COLUM. L. REV. 106, 110-11 (1915). In the course of thoroughly devastating the traditional in personam/in rem distinction between law and equity in connection with the enforcement of judgments, Professor Cook observed, "Apparently the end of the evolution along these lines with its tendency to eliminate the differences between legal and equitable procedure where the end sought is the same - to obtain payment of a sum of money - has not yet been reached." Id. at 117. Cook might thus have approved of Rules 64 and 69, but certainly not if they could easily be evaded by resort to a label.
163. See, e.g., MILLAR, supra note 143, at 490, 495, 514. Note that under Rule 64 and the governing state law, a federal court may be empowered to issue an injunction requiring a defendant to bring property within the state in aid of attachment. See, e.g., Chemical Bank v. Haseotes, 13 F.3d 569, 572-73 (2d Cir. 1994); see also InterRegional Fin. Group, Inc. v. Hashemi, 562 F.2d 152, 154-55 (2d Cir. 1977).
164. See 7 MOORE & FRIEDMAN, supra note 70, ¶ 64.01. Since the Rules effect a union of law and equity, nothing is to be gained by attempting to analyze a particular action as one at law or in equity. It may well present both "legal" and "equitable" issues and claims. The proper analysis is to determine, for example, whether the substance of a claim warrants the injunctive remedy, or whether an attachment is warranted for that type of claim pursuant to applicable federal or state law. Id. (footnotes omitted). This reasoning is circular to the extent that considering "whether the substance of a claim warrants the injunctive remedy" requires resort to traditional distinctions between equity and law. Id.
165. See Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1523 (11th Cir. 1994) (Carnes, J., concurring in part and dissenting in part) ("An injunction is not permissible to secure post-judgment legal relief in the form of damages. Such an injunction to secure future payment of possible money damages would be in the nature of a 'prejudgment attachment' subject to . . . Rule 64." (quoting Federal Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 560 (5th Cir. 1987))); see also infra text accompanying notes 153-61 (discussing Rule 65). The Fourth Circuit's recent decision concluding that the preliminary injunction under review was authorized both as an exercise of power in aid of final equitable relief and under Rule 64 and Maryland state law may be thought to muddy the waters. See United States ex rel. Rahman v. Oncology Associates, P.C., 198 F.3d 489 (4th Cir. 1999). For if, in fact, "the scope of [Rule] 64 incorporates state procedures authorizing any meaningful interference with property to secure satisfaction of a judgment, including any state-authorized injunctive relief for freezing assets to aid in satisfying the ultimate judgment in the case," then a federal court should be confined to state law remedies, even in a federal question case, and even when state law does not provide for injunctive relief. Id. at 501. On the view taken here, there is no such problem in a diversity state law case, because whether the court proceeds under Rule 64 or Rule 65, state law determines the availability of preliminary injunctive relief. See infra text accompanying notes 153-73. But Oncology Associates may suggest the need for more careful line-drawing in connection with federal law claims (including state law claims borrowed as federal law, as presumably in Oncology Associates itself) for which no statute authorizes preliminary injunctive relief. See infra note 165.
166. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo S.A., 143 F.3d 688, 692 (2d Cir. 1998), rev'd, 119 S. Ct. 1961 (1999).
167. Grupo Mexicano, 119 S. Ct. at 1974 ("Why go through the trouble of complying with local attachment and garnishment statutes when this all-purpose prejudgment injunction is available?").
168. See id. at 1968 n.3.
169. See supra text accompanying note 127.
170. 380 U.S. 460 (1965). We have also had the help of an informed guide to that decision. See John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693 (1974).
171. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
172. Grupo Mexicano, 119 S. Ct. at 1968 (quoting WRIGHT, MILLER, & KANE, infra note 161, § 2941); see also supra text accompanying note 58.
173. Grupo Mexicano, 119 S. Ct. at 1970.
174. See FED. R. CIV. P. 65. (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrong-fully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Employer and Employee; Interpleader; Constitutional Cases. These rules do not modify any statute of the United States relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of Title 28, U.S.C., § 2361, relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or Title 28, U.S.C., § 2284, relating to actions required by Act of Congress to be heard and determined by a district court of three judges. Id.
175. Rule 65 does require notice prior to the issuance of a preliminary injunction, see FED. R. CIV. P. 65(a), and it does specify standards for temporary restraining orders; see FED. R. CIV. P. 65(b). But those provisions were said to have been taken from a statute, with which Equity Rule 73 (1912) was said to be "substantially equivalent." 7 MOORE & FRIEDMAN, supra note 70, (reprinting original Advisory Committee Note). Borrowing from either a statute or an Equity Rule presents difficult questions of power under the Rules Enabling Act, see Burbank, supra note 15, at 1147-68, and in any event Rule 65 does not come close to such policy choices with respect to preliminary or final injunctions. The addition of Rule 65(a) (2) in 1966, which authorizes the consolidation of the hearing on an application for a preliminary injunction with the trial on the merits, does not change the analysis. See Reebok Int'l, Ltd. v. Marnatech Enter., Inc., 970 F.2d 552, 558 (9th Cir. 1992); In re Feit & Drexler, Inc., 760 F.2d 406, 415 (2d Cir. 1985).
176. See supra text accompanying note 117.
177. "The subject of injunctions in federal courts (particularly in labor disputes) is so loaded with potential dynamite that the committee played quite safe and made very few changes in the existing practice under [Rule 65]." Armistead M. Dobie, The Federal Rules of Civil Procedure, 25 VA. L. REV. 261, 301-02 (1939). Professor Dobie was a member of the Advisory Committee.
178. 7 MOORE & FRIEDMAN, supra note 70, ¶ 65.01.
179. See Civil Procedure for the District Courts of the United States: Hearings on H.R. 8892 Before the House Comm. on the Judiciary, 75th Cong., 3rd Sess. (1938). A memorandum submitted to the Supreme Court by the Advisory Committee in 1939 suggested the following as an explanation for Congress's interest in rules uniting procedure at law and in equity: No one can say positively what reasons the Congress had, but the fact that all the principal labor unions took a vital interest in the rules which relate to injunctions and suits against labor unions, and appeared before the Judiciary Committee on that subject, and insisted that no amendments to the rules be made without submission to Congress, supports the view that it was the subject of injunctions in the united rules which the Congress was most sensitive about. Memorandum Summarizing the Views of Majority of Advisory Committee Respecting the Court's Rule-Making Power Under the Act of June 19, 1934, at 8 (undated) (on file with author). The suggestion is erroneous but informative nonetheless. See Burbank, supra note 15, at 1071-77, 1155-56 & n.601.
180. See Civil Procedure for the District Courts of the United States: Hearings on H.R. 8892 Before the House Comm. on the Judiciary, 75th Cong., 3rd Sess. (1938). A memorandum submitted to the Supreme Court by the Advisory Committee in 1939 suggested the following as an explanation for Congress's interest in rules uniting procedure at law and in equity: No one can say positively what reasons the Congress had, but the fact that all the principal labor unions took a vital interest in the rules which relate to injunctions and suits against labor unions, and appeared before the Judiciary Committee on that subject, and insisted that no amendments to the rules be made without submission to Congress, supports the view that it was the subject of injunctions in the united rules which the Congress was most sensitive about. Memorandum Summarizing the Views of Majority of Advisory Committee Respecting the Court's Rule-Making Power Under the Act of June 19, 1934, at 8 (undated) (on file with author). The suggestion is erroneous but informative nonetheless. See Burbank, supra note 15, at 1071-77, 1155-56 & n.601.
181. For an example of such overreaching, see 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 2943, at 75-80 (2d ed. 1995), and see also 19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4513, at 442-44 (2d ed. 1995).
182. For an example of such overreaching, see 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 2943, at 75-80 (2d ed. 1995), and see also 19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4513, at 442-44 (2d ed. 1995).
183. See Petitioners' Brief at 20-30, Grupo Mexicano (No. 98-231).
184. See supra text accompanying notes 62, 70.
185. See Walker v. Armco Steel Corp., 446 U.S. 740, 752-53 (1980); Hanna v. Plumer, 380 U.S. 460, 468 (1965) (dictum).
186. This is one way of giving independent content to the notion of "inequitable administration of the laws" as used in Hanna's dictum. Hanna, 380 U.S. at 468; see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428-30 (1996); Walker, 446 U.S. at 753 ("There is simply no reason why, in the absence of a controlling federal rule [an action that would be barred in state court by a state statute of limitations should proceed to judgment in a federal diversity court]."); Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733, 789 n.279 (1986). It probably breathes more life into Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525 (1958), than is warranted by the Court's subsequent decisions, allowing it to live outside of the sphere of influence of the Seventh Amendment. See Gasperini, 518 U.S. at 431-39; see also Burbank, supra, at 788-89. Rule 64 provides, as a qualification of the direction to follow state law, that "any existing statute of the United States governs to the extent to which it is applicable." FED. R. CIV. P. 64. The amicus brief of the United States was evidently prompted in part by concern that nothing the Court might do in Grupo Mexicano should prejudice the rights of the United States in litigation. To that end, the brief set forth numerous statutory provisions that give district courts authority to grant provisional injunctive relief to secure satisfaction of a judgment. See Brief for the United States at 22 n.7, 30-34, Grupo Mexicano (No. 98-231).
187. 11A WRIGHT, MILLER, & KANE, supra note 161, § 2943, at 79. But see A.A.S. Zuckerman, Mareva Injunctions and Security for Judgment in a Framewok of Interlocutory Remedies, 109 LAW Q. REV. 432, 436 (1993) ("As a result, Mareva injunctions place defendants at a serious disadvantage. It is safe to assume that, as with interlocutory injunctions, Mareva injunctions bring litigation to a swift end.") (footnote omitted).
188. This doctrine "required a federal court of equity to redress state-created rights in accord with the remedies determined by a uniform federal equity jurisprudence." Note, The Equitable Remedial Rights Doctrine: Past and Present, 67 HARV. L. REV. 836, 836 (1954) [hereinafter Equitable Remedial Rights]. There have been developments in Erie jurisprudence since 1954, some of which render the concluding section out of date. See id. at 843-45. But nothing in those developments diminishes - indeed, taken as a whole they reinforce - the thrust of the thoughtful and concise analysis.
189. This doctrine "required a federal court of equity to redress state-created rights in accord with the remedies determined by a uniform federal equity jurisprudence." Note, The Equitable Remedial Rights Doctrine: Past and Present, 67 HARV. L. REV. 836, 836 (1954) [hereinafter Equitable Remedial Rights]. There have been developments in Erie jurisprudence since 1954, some of which render the concluding section out of date. See id. at 843-45. But nothing in those developments diminishes - indeed, taken as a whole they reinforce - the thrust of the thoughtful and concise analysis.
190. This is the expression used by a disc jockey on a radio station in Cape Cod, Massachusetts, to describe the group Jay and the Americans.
191. 41 U.S. (16 Pet.) 1 (1842). It is surely no coincidence that many of the statements asserting broad federal power in equity issued from the pen of Justice Joseph Story, the author of Swift. See Equitable Remedial Rights, supra note 167, at 838 n.21.
192. See A.J. PEELER, A TREATISE ON LAW AND EQUITY: AS DISTINGUISHED AND ENFORCED IN THE COURTS OF THE UNITED STATES § 111 (1883); 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITED STATES OF AMERICA: ADAPTED FOR ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE §§ 291-97 (2d ed. 1892); Equitable Remedial Rights, supra note 167, at 836-37.
193. See A.J. PEELER, A TREATISE ON LAW AND EQUITY: AS DISTINGUISHED AND ENFORCED IN THE COURTS OF THE UNITED STATES § 111 (1883); 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITED STATES OF AMERICA: ADAPTED FOR ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE §§ 291-97 (2d ed. 1892); Equitable Remedial Rights, supra note 167, at 836-37.
194. See A.J. PEELER, A TREATISE ON LAW AND EQUITY: AS DISTINGUISHED AND ENFORCED IN THE COURTS OF THE UNITED STATES § 111 (1883); 1 JOHN NORTON POMEROY, A TREATISE ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN THE UNITED STATES OF AMERICA: ADAPTED FOR ALL THE STATES, AND TO THE UNION OF LEGAL AND EQUITABLE REMEDIES UNDER THE REFORMED PROCEDURE §§ 291-97 (2d ed. 1892); Equitable Remedial Rights, supra note 167, at 836-37.
195. 28 U.S.C. § 1652 (1994). The change of language in the Rules of Decision Act as part of the 1948 codification of the Judicial Code - from "in trials at common law" to "in civil actions" - merely confirmed what the Court had previously stated if not always faithfully implemented. See Mason v. United States, 260 U.S. 545, 559 (1923); Burbank, supra note 165, at 761 n.121.
196. 326 U.S. 99, 105 (1945).
197. For an analysis that does not require that interpretation, see Equitable Remedial Rights, supra note 167, at 841 ("This use of the remedial rights doctrine seems more for rhetorical emphasis than as a reaffirmance of the doctrine itself."). But see 11A WRIGHT, MILLER, & KANE, supra note 161, § 2943, at 77 (seeking to "give some effect" to dictum in Guaranty Trust). Compare the more balanced treatment in 19 WRIGHT, MILLER, & COOPER, supra note 161, § 4513 and Cendant Corp. v. Forbes, 70 F. Supp. 2d 339, 343-45 (S.D.N.Y. 1999) (dictum), aff'd, No. 99-9180, 2000 U.S. App. LEXIS 1253 (2d Cir. Jan 28, 2000).
198. Supra text accompanying notes 122-23.
199. See supra text accompanying notes 62, 81; infra text accompanying note 180. It is also difficult to know what to make of the Court's assertion that the rule requiring a judgment is "rendered all the more important in our federal system by the debtor's right to a jury trial on the legal claim." Grupo Mexicano, 119 S. Ct. at 1973-74. Obviously the Court did not believe that the Seventh Amendment, which is binding on Congress as it is on the federal courts, forecloses a grant of power to the district courts to issue preliminary injunctions prior to judgment in cases seeking only a damage remedy. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 n.20 (1962) (dictum). Erroneous use for summary judgment purposes of credibility determinations made in ruling on a preliminary injunction motion could sap the jury trial right, but that is why we have courts of appeals. See Country Floors, Inc. v. Gepner, 930 F.2d 1056 (3d Cir. 1991). More generally, since juries also have nothing to do with decisions regarding provisional remedies, "respect for the right to a jury trial can play no role in deciding between prejudgment attachment and preliminary injunction." Wasserman, supra note 70, at 322-23; see also Grupo Mexicano, 119 S. Ct. at 1977 n.5 (Ginzburg, J., dissenting). The Court has not taken the view that Congress has discretion to define the scope of the right under the Seventh Amendment. See Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. RICHMOND L. REV. 407 (1999). But attachment and the like are creatures of statute. Perhaps, therefore, the Court's invocation of the jury trial right is simply an additional consideration in favor of its separation of powers rationale.
200. "Chancery may have refused to issue injunctions of this sort simply because they were not needed to secure a just result in an age of slow-moving capital and comparatively immobile wealth." Grupo Mexicano, 119 S. Ct. at 1977 (Ginsburg, J., dissenting).
201. See id.; see also supra text accompanying notes 90, 128.
202. James, supra note 2, at 664.
203. See, e.g., MILLAR, supra note 143, at 65-73; Laycock, supra note 1, at 67-71; Subrin, supra note 7, at 914-23; William F. Walsh, The Growing Function of Equity and the Development of the Law, in 3 LAW: A CENTURY OF PROGRESS 1835-1935, at 139 (Alison Reppy ed., 1937).
204. See supra text accompanying note 128.
205. Grupo Mexicano, 119 S. Ct. at 1974.
206. See THE FEDERALIST No. 80 (Alexander Hamilton); Wythe Holt, The Origins of Alienage Jurisdiction, 14 OKLA. CITY U. L. REV. 547 (1989).
207. See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE: 1815-1835, at 600 (1988). In the period of the Articles of Confederation several states had responded to problems in the supply of money by passing laws designed to provide for alternative means of repaying debts. The laws allowed states to issue paper currency and made that currency legal tender in the payment of debts, provided for the payment of debts in certain commodities, extended the time for debt obligations beyond the periods fixed in contracts, and allowed debts to be paid in installments despite the absence of contract installment provisions. Id. (footnote omitted); see also Charles Warren, Federal Process and State Legislation (pts. 1 & 2), 16 VA. L. REV. 421, 432, 546, 546-48 (1930).
208. See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE: 1815-1835, at 600 (1988). In the period of the Articles of Confederation several states had responded to problems in the supply of money by passing laws designed to provide for alternative means of repaying debts. The laws allowed states to issue paper currency and made that currency legal tender in the payment of debts, provided for the payment of debts in certain commodities, extended the time for debt obligations beyond the periods fixed in contracts, and allowed debts to be paid in installments despite the absence of contract installment provisions. Id. (footnote omitted); see also Charles Warren, Federal Process and State Legislation (pts. 1 & 2), 16 VA. L. REV. 421, 432, 546, 546-48 (1930).
209. See U.S. CONST, art. I, § 10; WHITE, supra note 183, at 600-01; Warren, supra note 183, at 547. Of course, these concerns were hardly universal. There were plenty of people involved in the process of framing and ratifying the Constitution who favored neither lower federal courts nor creditors. The fact that they lost does not mean that it was a walk-over. See, e.g., JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS AND BEGINNINGS TO 1801, at 196-412 (1971).
210. See Warren, supra note 183, at 437-38. For broader context, see TONY ALLAN FREYER, FORUMS OF ORDER: THE FEDERAL COURTS AND BUSINESS IN AMERICAN HISTORY 19-35 (1979), and 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 93-111 (1922).
211. See Warren, supra note 183, at 437-38. For broader context, see TONY ALLAN FREYER, FORUMS OF ORDER: THE FEDERAL COURTS AND BUSINESS IN AMERICAN HISTORY 19-35 (1979), and 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 93-111 (1922).
212. See Warren, supra note 183, at 438. More recent and more focused scholarship on the lower federal courts in Kentucky demonstrates that Warren misinterpreted certain correspondence and accepted political propaganda in retrojecting to the first two decades of the 19th century general antipathy towards the federal courts in that state. See MARY K. BONSTEEL TACHAU, FEDERAL COURTS IN THE EARLY REPUBLIC: KENTUCKY 1789-1816, at 24-25 n.27 (1978).
213. See Bronson v. Kinzie, 42 U.S. (1 How.) 311 (1843); Warren, supra note 164, at 549-50.
214. See FREYER, supra note 185, at 27 ("Cases coming from the aforementioned difficulties in Kentucky, Tennessee, and Alabama reveal how the Supreme Court could use procedural technicalities to defeat state power.").
215. 23 U.S. (10 Wheat.) 1 (1825); see also Burbank, supra note 15, at 1036-37.
216. 23 U.S. (10 Wheat.) 51 (1825).
217. See Wayman, 23 U.S. (10 Wheat.) at 42-43; Burbank, supra note 15, at 1115-16.
218. See Wayman, 23 U.S. (10 Wheat.) at 21, 49-50.
219. See Warren, supra note 183, at 549. Note, however, that in both Wayman, 23 U.S. (10 Wheat.) at 21, and its companion case, see United States v. Halstead, 23 U.S. (10 Wheat.) 51, 52 (1825), the marshal complied with state law, triggering a motion to quash the return on the execution.
220. Wayman, 23 U.S. (10 Wheat.) at 46-47. "The thrust of this passage was to suggest a connection between the Framers' distinct disapproval of the efforts of some states to disregard creditors' rights and the delegation of power to the federal courts to prescribe their own 'modes of proceeding.'" WHITE, supra note 183, at 851. Professor White concludes that the Marshall Court "succeeded remarkably in establishing th[e] impression in public consciousness" that it was "removed from politics and faithful to the impersonal dictates of the law." Id. at 964. But he observes, "it is not at all clear that the Court's opinions were nonpartisan, or even that they were so perceived by those who followed its actions closely." Id. Professor Freyer notes that "[d]uring its first forty-five years, the federal judiciary strongly favored the right of interstate creditors in commercials cases; it did so, however, only on a case-by-case basis." FREYER, supra note 185, at 46. For a similar rhetorical technique in Supreme Court opinions calculated to dissuade lower federal courts from following state procedure - in this instance code procedure - see Burbank, supra note 15, at 1038-39.
221. See supra text accompanying note 187. It should not be assumed that state courts in the 19th century followed the decisions of the Supreme Court in this area. During the next fifteen years, these decisions of the Supreme Court were followed, reluctantly, by State Courts in Michigan, Indiana, Iowa and California. On the other hand, the States of Alabama, Minnesota, New York and Pennsylvania refused to adopt such views of their state laws, and, in spite of the fact that those laws were not applied by the Federal Courts, continued to extend relief to debtors in State Courts. Warren, supra note 183, at 551.
222. Warren, supra note 183, at 439.
223. See id. at 439-44.
224. See Act of May 19, 1828, ch. 68, § 3, 4 Stat. 278, 281. "This restriction was a very essential change from the provisions of the Act of 1792 and materially limited the former rule-making authority of the Federal Courts. It was the direct result of the attack made by Kentucky upon the right of such courts to regulate executions." Warren, supra note 183, at 445.
225. Warren, supra note 183, at 446.
226. See id. at 446-49.
227. Id. at 446-47 (footnote omitted).
228. See Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 YALE L.J. 52 (1968). The term "mesne," as used in the law of process, is a source of confusion to many modern students because although the literal meaning of the term is "middle," today we begin our law suits with mesne process. At common law, mesne process was any process between the "original" process of summons under the original Chancery writ and the "final" process of execution upon judgment. With the demise of the writ system, the initial process then came out of the courts of law, but the name "mesne" continued to be used for it. Id. at 57 n.21.
229. See Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 YALE L.J. 52 (1968). The term "mesne," as used in the law of process, is a source of confusion to many modern students because although the literal meaning of the term is "middle," today we begin our law suits with mesne process. At common law, mesne process was any process between the "original" process of summons under the original Chancery writ and the "final" process of execution upon judgment. With the demise of the writ system, the initial process then came out of the courts of law, but the name "mesne" continued to be used for it. Id. at 57 n.21.
230. See Act of May 19, 1828, ch. 68, § 1, 4 Stat. 278.
231. See Warren, supra note 183, at 443.
232. See id. at 546.
233. See Act of June 1, 1872, ch. 255, § 6, 17 Stat. 197. Compare the provision with respect to "the practice, pleadings, and forms and modes of proceeding." Id. § 5, 17 Stat. at 197; see also Burbank, supra note 15, at 1039.
234. See Levy, supra note 202.
235. See 1 GARRARD GLENN, FRAUDULENT CONVEYANCES AND PREFERENCES §§ 37-38 (rev. ed. 1940); CHARLES D. DRAKE, A TREATISE ON THE LAW OF SUITS BY ATTACHMENT IN THE UNITED STATES §§ 1-8 (7th ed. 1891); MILLAR, supra note 143, at 481-515.
236. See 1 GARRARD GLENN, FRAUDULENT CONVEYANCES AND PREFERENCES §§ 37-38 (rev. ed. 1940); CHARLES D. DRAKE, A TREATISE ON THE LAW OF SUITS BY ATTACHMENT IN THE UNITED STATES §§ 1-8 (7th ed. 1891); MILLAR, supra note 143, at 481-515.
237. 95 U.S. 714 (1877).
238. 433 U.S. 186 (1977).
239. GLENN, supra note 208, § 38, at 65.
240. See MILLAR, supra note 143, at 485-91; Levy, supra note 202, at 96 n.223; Wasserman, supra note 70, at 271-75. Millar's detailed and nuanced historical account requires refinement of Glenn's dichotomy between attachment in its original usage, to secure the defendant's appearance, and "American attachment," which he claimed "is quite modern, because today it accomplishes a purpose that was wholly unknown in the Custom of London." GLENN, supra note 208, § 38, at 66.
241. See DRAKE, supra note 208, § 83, at 67; GLENN, supra note 208, § 38, at 66-67; MILLAR, supra note 143, at 486-92.
242. See Act of May 19, 1828, ch. 68, § 2, 4 Stat. 281.
243. See Act of July 4, 1840, ch. 43, § 4, 5 Stat. 393.
244. See Cooke v. Avery, 147 U.S. 375, 389 (1893).
245. Warren, supra note 183, at 557 (footnote omitted); see also Act of Aug. 1, 1888, ch. 729, 25 Stat. 357.
246. See, e.g., FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 124-27 (1928); EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 54, 64 (1992).
247. See, e.g., FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 124-27 (1928); EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 54, 64 (1992).
248. Inconvenience and inconsistency resulting from optional static conformity under the Process Acts seem to have been the prime causes of the switch to dynamic conformity in section 5 of the 1872 Conformity Act. See Burbank, supra note 15, at 1036-39. Brainerd Currie asserted that Congress's purpose in section 6 was "unmistakably clear" and that "[i]t could hardly be plainer that Congress was attempting to change the rule that actions could not be commenced in the federal courts by attachment or garnishment, without personal service, if state law so provided." Brainerd Currie, Attachment and Garnishment in the Federal Courts, 59 MICH. L. REV. 337, 353 (1961). Professor Currie was mistaken. His dismay with the way in which the federal courts arrived at the rule allegedly sought to be changed is fully justified. See id. at 337-52. But not even the language he selectively quoted from section 6 suggests such a purpose, see id. at 352, and he failed to note that the section also dealt, in exactly the same way, with remedies "by execution or otherwise, to reach the property of the dgment debtor," Act of June 1, 1872, ch. 255, § 6, 17 Stat. 196, 197; see also supra text accompanying note 206. Moreover, the result of the rejection of this interpretation in Nazro v. Cragin, 17 Fed. Cas. 1259 (No. 10062) (C.C.D. Iowa 1874) (Miller, J.), was not "that section 6 effected no change in the prior law," Currie, supra, at 353 n.70, once one focuses on what Congress was in fact trying to regulate - namely, federal court practice and procedure with respect to provisional and final remedies.
249. Inconvenience and inconsistency resulting from optional static conformity under the Process Acts seem to have been the prime causes of the switch to dynamic conformity in section 5 of the 1872 Conformity Act. See Burbank, supra note 15, at 1036-39. Brainerd Currie asserted that Congress's purpose in section 6 was "unmistakably clear" and that "[i]t could hardly be plainer that Congress was attempting to change the rule that actions could not be commenced in the federal courts by attachment or garnishment, without personal service, if state law so provided." Brainerd Currie, Attachment and Garnishment in the Federal Courts, 59 MICH. L. REV. 337, 353 (1961). Professor Currie was mistaken. His dismay with the way in which the federal courts arrived at the rule allegedly sought to be changed is fully justified. See id. at 337-52. But not even the language he selectively quoted from section 6 suggests such a purpose, see id. at 352, and he failed to note that the section also dealt, in exactly the same way, with remedies "by execution or otherwise, to reach the property of the dgment debtor," Act of June 1, 1872, ch. 255, § 6, 17 Stat. 196, 197; see also supra text accompanying note 206. Moreover, the result of the rejection of this interpretation in Nazro v. Cragin, 17 Fed. Cas. 1259 (No. 10062) (C.C.D. Iowa 1874) (Miller, J.), was not "that section 6 effected no change in the prior law," Currie, supra, at 353 n.70, once one focuses on what Congress was in fact trying to regulate - namely, federal court practice and procedure with respect to provisional and final remedies.
250. Inconvenience and inconsistency resulting from optional static conformity under the Process Acts seem to have been the prime causes of the switch to dynamic conformity in section 5 of the 1872 Conformity Act. See Burbank, supra note 15, at 1036-39. Brainerd Currie asserted that Congress's purpose in section 6 was "unmistakably clear" and that "[i]t could hardly be plainer that Congress was attempting to change the rule that actions could not be commenced in the federal courts by attachment or garnishment, without personal service, if state law so provided." Brainerd Currie, Attachment and Garnishment in the Federal Courts, 59 MICH. L. REV. 337, 353 (1961). Professor Currie was mistaken. His dismay with the way in which the federal courts arrived at the rule allegedly sought to be changed is fully justified. See id. at 337-52. But not even the language he selectively quoted from section 6 suggests such a purpose, see id. at 352, and he failed to note that the section also dealt, in exactly the same way, with remedies "by execution or otherwise, to reach the property of the dgment debtor," Act of June 1, 1872, ch. 255, § 6, 17 Stat. 196, 197; see also supra text accompanying note 206. Moreover, the result of the rejection of this interpretation in Nazro v. Cragin, 17 Fed. Cas. 1259 (No. 10062) (C.C.D. Iowa 1874) (Miller, J.), was not "that section 6 effected no change in the prior law," Currie, supra, at 353 n.70, once one focuses on what Congress was in fact trying to regulate - namely, federal court practice and procedure with respect to provisional and final remedies.
251. See Burbank, supra note 15.
252. See id. at 1056-61, 1087-88, 1125-27.
253. See id. at 1063-65, 1127-31, 1133-37.
254. See id. at 1098-1106.
255. See FED. R. CIV. P. 64 (addressing provisional remedies); FED. R. CIV. P. 69 (addressing final remedies).
256. See Burbank, supra note 15, at 1145-47.
257. See id. at 1085-86. The [1926 Senate Judiciary] Committee . . . took very seriously the claim by Senator Walsh that the delegation in the Cummins bill extended to matters ch as "limitations of actions, provisional remedies, such as orders of arrest and attachment, and the selection or qualification of jurors." In the longest section of the 1926 Senate Report, entitled "The Bill Does Not Attempt to Affect Substantive Rights or Remedies," the Committee explained why the bill authorized neither court rules relating to those matters nor, as also argued by opponents, court rules relating to "substantial rights and remedies in a manner contrary to the public policy of the several States embodied in local statutory law." Id. (footnotes omitted).
258. See Edson R. Sunderland, Character and Extent of the Rule-Making Power Granted the Supreme Court of the United States and Methods of Effective Exercise, 21 A.B.A. J. 404 (1935). A question might perhaps be raised whether the right to arrest the person or seize property on original process, or the right to employ attachment, garnishment, execution or other similar remedies, all of which constitute direct interference with personal liberty or control over property, ought, on grounds of public policy, to be deemed procedural rather than substantive. Id. at 406; see also Richard W. Montague, Restoring to the Courts the Power to Make Rules of Procedure, 6 OR. L. REV. 17, 19-20 (1928); Warren, supra note 183, at 570. Professor Sunderland was subsequently appointed to the Advisory Committee, but concern about revisionist aspects of the cited article and another article almost prevented that appointment, as it surely prevented him from becoming the Reporter. See Burbank, supra note 15, at 1133-37.
259. See Edson R. Sunderland, Character and Extent of the Rule-Making Power Granted the Supreme Court of the United States and Methods of Effective Exercise, 21 A.B.A. J. 404 (1935). A question might perhaps be raised whether the right to arrest the person or seize property on original process, or the right to employ attachment, garnishment, execution or other similar remedies, all of which constitute direct interference with personal liberty or control over property, ought, on grounds of public policy, to be deemed procedural rather than substantive. Id. at 406; see also Richard W. Montague, Restoring to the Courts the Power to Make Rules of Procedure, 6 OR. L. REV. 17, 19-20 (1928); Warren, supra note 183, at 570. Professor Sunderland was subsequently appointed to the Advisory Committee, but concern about revisionist aspects of the cited article and another article almost prevented that appointment, as it surely prevented him from becoming the Reporter. See Burbank, supra note 15, at 1133-37.
260. See Edson R. Sunderland, Character and Extent of the Rule-Making Power Granted the Supreme Court of the United States and Methods of Effective Exercise, 21 A.B.A. J. 404 (1935). A question might perhaps be raised whether the right to arrest the person or seize property on original process, or the right to employ attachment, garnishment, execution or other similar remedies, all of which constitute direct interference with personal liberty or control over property, ought, on grounds of public policy, to be deemed procedural rather than substantive. Id. at 406; see also Richard W. Montague, Restoring to the Courts the Power to Make Rules of Procedure, 6 OR. L. REV. 17, 19-20 (1928); Warren, supra note 183, at 570. Professor Sunderland was subsequently appointed to the Advisory Committee, but concern about revisionist aspects of the cited article and another article almost prevented that appointment, as it surely prevented him from becoming the Reporter. See Burbank, supra note 15, at 1133-37.
261. William D. Mitchell, Uniform State and Federal Practice: A New Demand for More Efficient Judicial Procedure, 24 A.B.A.J. 981, 982 (1938); see also Burbank, super note 15, at 1146 n.572. "Mitchell may well have been referring to aspects of provisional and final remedies that do not raise problems of power under the Act." Id.
262. William D. Mitchell, Uniform State and Federal Practice: A New Demand for More Efficient Judicial Procedure, 24 A.B.A.J. 981, 982 (1938); see also Burbank, super note 15, at 1146 n.572. "Mitchell may well have been referring to aspects of provisional and final remedies that do not raise problems of power under the Act." Id.
263. Hearings on S.J. Res. 281 Before a Subcomm. of the Senate Comm. on the Judiciary, 75th Cong., 3d Sess., pt. 1, at 8 (1938). Mitchell replied, "I do not think so. I do not think it had any such purpose. I think the practice in the Federal courts today in the matter of seizures of property by attachment, and so on, conforms to State practice, and that rule simply says that shall be continued." Id.
264. Hearings on S.J. Res. 281 Before a Subcomm. of the Senate Comm. on the Judiciary, 75th Cong., 3d Sess., pt. 1, at 8 (1938). Mitchell replied, "I do not think so. I do not think it had any such purpose. I think the practice in the Federal courts today in the matter of seizures of property by attachment, and so on, conforms to State practice, and that rule simply says that shall be continued." Id.
265. Id. at 25; see also Burbank, supra note 15, at 1147 n.577. In fact, there was a small change from conformity as of 1872 with power to adopt subsequent state law by neral rule to dynamic conformity. See 7 MOORE & FRIEDMAN, supra note 70, at ¶ 64.01 [2] (reprinting the original advisory committee note).
266. See Act of Aug. 23, 1842, ch. 188, § 6, 5 Stat. 516, 518.
267. Although the Solicitor General acknowledged that history is not "irrelevant to the proper modern application of equitable principles," Brief for the United States at 16, Grupo Mexicano (No. 98-231), he ignored the history of provisional remedies in actions at law, see id. at 16-18. As a result, the brief described Rule 64's language as "permissive and supplementary," id. at 21, and went so far as to invoke Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), for the proposition that, "if a state-law remedy unavailable or inadequate under the circumstances of a particular case, a federal court is not left powerless to protect the parties before it and its own ultimate ability to enter an effective judgment." Brief for the United States at 21-22, Grupo Mexicano (No. 98-231). This is revisionism on stilts. See supra text accompanying notes 182-218.
268. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985); Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974); Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Stephen B. Burbank, The World in Our Courts, 89 MICH. L. REV. 1456, 1466-73 (1991) (book review).
269. See Grupo Mexicano, 119 S. Ct. at 1977 (Ginsburg, J., dissenting).
270. Id. at 1970.
271. Supra text accompanying note 2.
272. 304 U.S. 64 (1938).
273. See supra text accompanying notes 129-73.
274. See Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, §§ 402-07, 102 Stat. 4642, 4648-52 (codified at 28 U.S.C. §§ 2072-74 (1994)).
275. See H.R. REP. No. 100-889, at 26 (1988); H.R. REP. No. 99-422 (1985); Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1029-36.
276. H.R. REP. No. 99-422, at 21 (1985).
277. S. REP. No. 69-1174, at 9 (1926); see also Burbank, supra note 15, at 1083-89; Stephen B. Burbank, Proposals to Amend Rule 68 - Time to Abandon Ship, 19 U. MICH. J.L. REFORM 425, 433-34 (1986).
278. See Burbank, supra note 15, at 1147.
279. See supra text accompanying notes 153-173.
280. See, e.g., Burlington N. R.R. v. Woods, 480 U.S. 1 (1987); Ralph U. Whitten, Erie and the Federal Rules: A Review and Reappraisal After Burlington Northern Railroad v. Woods, 21 CREIGHTON L. REV. 1 (1987); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988) (reading a federal statute broadly for the same purpose). With the source of applicable law turning on what may seem to be the fortuity of federal lawmaking arrangements, it is an understandable temptation to ar federal statutes or Federal Rules speaking when they appear to be silent, or at least to hear enough noise nearby to silence state law. Stephen B. Burbank, Case One: Choice of Forum Clauses, 29 NEW ENG. L. REV. 517, 537 (1995).
281. See, e.g., Burlington N. R.R. v. Woods, 480 U.S. 1 (1987); Ralph U. Whitten, Erie and the Federal Rules: A Review and Reappraisal After Burlington Northern Railroad v. Woods, 21 CREIGHTON L. REV. 1 (1987); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988) (reading a federal statute broadly for the same purpose). With the source of applicable law turning on what may seem to be the fortuity of federal lawmaking arrangements, it is an understandable temptation to ar federal statutes or Federal Rules speaking when they appear to be silent, or at least to hear enough noise nearby to silence state law. Stephen B. Burbank, Case One: Choice of Forum Clauses, 29 NEW ENG. L. REV. 517, 537 (1995).
282. See Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693, 714-19 (1988); Burbank, supra note 242, at 437 (discussing the impact of similar technique on prior federal statutes).
283. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). Justice Scalia finds in Federal Rule of Civil Procedure 59 a "federal standard" for new trial motions in "direct collision" with, and "leaving no room for the operation of," a state law like CPLR § 5501 (c) . . . . The relevant prescription, Rule 59(a), has remained unchanged since the adoption of the Federal Rules by this Court in 1937 . . . . Rule 59(a) is as encompassing as it is uncontroversial. It is indeed "Hornbook" law that a most usual ground for a Rule 59 motion is that "the damages are excessive. . . ." Whether damages are excessive for the claim-in-suit must be governed by some law. And there is no candidate for that governance other than the law that gives rise to the claim for relief - here, the law of New York. See 28 U.S.C. §§ 2072 (a) & (b) ("Supreme Court shall have the power to prescribe general rules of . . . procedure"; "[s]uch rules shall not abridge, enlarge or modify any substantive right"). Id. at 437 n.22.
284. See, e.g., Business Guides, Inc. v. Chromatic Communications Enter., Inc., 498 U.S. 533, 564-69 (1991) (Kennedy, J., dissenting) (noting serious problems under the Enabling Act with a Rule 11 sanction imposed on represented client).
285. Supra text accompanying note 17. For examples of such treatment of the Enabling Act, see Ortiz v. Fibreboard Corp., 119 S. Ct. 2295, 2313-14 (1999) (invoking Enabling Act in aid of narrow interpretation of Rule 23(b) (1) in asbestos settlement class action), Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), and Gasperini, 8 U.S. at 437 n.22. The Court's reliance in Ortiz on limitations emerging from the tradition of equity and supposedly captured in Rule 23(b) (1) (B), see 119 S. Ct. at 2308-12, is another technique that the decision shares in common with Grupo Mexicano.
286. See Burbank, supra note 15, at 1106-12. There has been some progress, however. See Burbank, supra note 233, at 1498 n.255.
287. See Grupo Mexicano, 119 S. Ct. at 1970 (stating that Rule 18(b) "specifically reserves substantive rights (as did the Rules Enabling Act)"); id. (stating that merger of law and equity did "not alter substantive rights" and that the Court was not "inclined to believe that it is merely a question of procedure whether a person's unencumbered assets can be frozen by general-creditor claimants before their claims have been vindicated by judgment").
288. Id. at 1970.
289. Id.
290. See Burbank, supra note 233, at 1481-90; Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation, LAW & CONTEMP. PROBS., Summer 1994, at 103, 111-24, 137-138, 143-48 103, 111-24, 137-38, 143-48; see also 28 U.S.C. §§ 1609-11 (1998) (relating to immunity and exceptions to immunity from attachment and execution of property of foreign state).
291. See Burbank, supra note 254, at 144.
292. Proceeding along this path also requires the assumption that Rule 64 would not control, remitting the question to state law. See supra note 146.
293. See, e.g., Cole v. Cunningham, 133 U.S. 107 (1890); Ernest J. Messner, The Jurisdiction of a Court of Equity over Persons to Compel the Doing of Acts Outside the Territorial Limits of the State, 14 MINN. L. REV. 494 (1930).
294. See Cook, supra note 143. But see Republic of the Philipines v. Marcos, 862 F.2d 1355, 1363-64 (9th Cir. 1988) (en banc) ("Because the injunction operates in personam, not in rem, there is no reason to be concerned about its territorial reach."). The tendency of American courts to ignore such extraterritorial aspects is noted by Bermann, supra note 140, at 564-66.
295. See, e.g., GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 595 (3d ed. 1996); David J. Gerber, International Discovery After Aerospatiale: The Quest for an Analytical Framework, 82 AM. J. INT'L L. 521 (1988); David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 VAND. J. TRANSNAT'L L. 993 (1991).
296. See, e.g., GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 595 (3d ed. 1996); David J. Gerber, International Discovery After Aerospatiale: The Quest for an Analytical Framework, 82 AM. J. INT'L L. 521 (1988); David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 VAND. J. TRANSNAT'L L. 993 (1991).
297. See, e.g., GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 595 (3d ed. 1996); David J. Gerber, International Discovery After Aerospatiale: The Quest for an Analytical Framework, 82 AM. J. INT'L L. 521 (1988); David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 VAND. J. TRANSNAT'L L. 993 (1991).
298. See Burbank, supra note 233, at 1459-66, 1490-97.
299. In a decision dated August 20, 1999, the court of appeals vacated the Turnover Order and remanded for fact-finding necessary to determine whether that order was authorized under New York law, observing: On the current record, we lack sufficient information to choose between the competing characterizations promoted by the parties. The district court received no evidence and made no findings concerning either the nature of Mexico's promise to exchange government notes for toll road receivables or the financial characteristics of those government notes. On appeal, no party has drawn our attention to the text of either the Toll Road Rescue Program or the government notes - both of which are presumably written in Spanish. We are therefore unable to determine whether the district court's issuance of the turnover order accorded with New York law. Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 190 F.3d 16, 22 (2d Cir. 1999).
300. See Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 697 (2d Cir. 1998), rev'd, 119 S. Ct. 1961 (1999); see also supra note 49.
301. See LAYCOCK, supra note 6, at 81 ("Defendant may be irreparably harmed if a court shifts tactical advantage without sufficient justification.") (footnote omitted); see also supra note 138. Although the district court stated that it would entertain requests to modify the terms of the preliminary injunction to meet GMD's ordinary course business needs, what GMD needed was restructuring. See Transcript of Oral Argument at *3, Grupo Mexicano (No. 98-231), available in 1999 WL 216177.
302. Grupo Mexicano, 119 S. Ct. at 1975-76 (Ginsburg, J., dissenting).
303. See Petitioners' Reply Brief, Grupo Mexicano (No. 98-231). GMD, on its own initiative, updated its submissions to the district court as soon as additional information became available (and before any ruling by the district court). . . . Any incompleteness in GMD's initial submission was attributable directly to the need to respond hurriedly, with information gathered from abroad, to respondents' ex parte application for a preliminary injunction. Id. at 2.
304. See id.; Petitioners' Brief at 5-6, Grupo Mexicano (No. 98-231). The Solicitor General acknowledged the need for "judicial sensitivity in framing an injunctive order to avoid any unnecessary interference with obligations imposed on petitioners under Mexican law." Brief for the United States at 18, Grupo Mexicano (No. 98-231). But he was content to assert that the district court took account of both the international and insolvency aspects of this case, by declining respondents' request that it order petitioners to create a trust under Mexican law, and by accepting respondents' suggestion to include in the injunction a provision specifying that it did not prohibit petitioners from commencing insolvency proceedings "under any applicable law." Id. at 18-19 (footnote omitted). The footnote pointed out the district court's expressed willingness to consider modifications. See id. at 19 n.5.
305. See Lawrence Collins, United States Supreme Court Rejects Mareva Injunctions, 115 LAW Q. REV. 601 (1999). [B] oth the majority and minority opinions ignore the comity implications of the exercise of injunctive power in relation to assets abroad. The jurisdiction under New York state law to make a pre-judgment attachment of assets was not available because the assets were situated abroad. It must be very doubtful whether an English court would have granted an injunction in like circumstances against a foreign defendant, having no assets or business in England, which was making a bona fide effort to restructure its debt and to al with employee compensation claims and revenue claims in the country where its business was centred. Id. at 604; see also Lawrence Collins, Provisional and Protective Measures in International Litigation, 234 RECUEIL DES COURS 19 (1992) [hereinafter Collins, Provisional and Protective Measures].
306. See Lawrence Collins, United States Supreme Court Rejects Mareva Injunctions, 115 LAW Q. REV. 601 (1999). [B] oth the majority and minority opinions ignore the comity implications of the exercise of injunctive power in relation to assets abroad. The jurisdiction under New York state law to make a pre-judgment attachment of assets was not available because the assets were situated abroad. It must be very doubtful whether an English court would have granted an injunction in like circumstances against a foreign defendant, having no assets or business in England, which was making a bona fide effort to restructure its debt and to al with employee compensation claims and revenue claims in the country where its business was centred. Id. at 604; see also Lawrence Collins, Provisional and Protective Measures in International Litigation, 234 RECUEIL DES COURS 19 (1992) [hereinafter Collins, Provisional and Protective Measures].
307. See Lawrence Collins, United States Supreme Court Rejects Mareva Injunctions, 115 LAW Q. REV. 601 (1999). [B] oth the majority and minority opinions ignore the comity implications of the exercise of injunctive power in relation to assets abroad. The jurisdiction under New York state law to make a pre-judgment attachment of assets was not available because the assets were situated abroad. It must be very doubtful whether an English court would have granted an injunction in like circumstances against a foreign defendant, having no assets or business in England, which was making a bona fide effort to restructure its debt and to al with employee compensation claims and revenue claims in the country where its business was centred. Id. at 604; see also Lawrence Collins, Provisional and Protective Measures in International Litigation, 234 RECUEIL DES COURS 19 (1992) [hereinafter Collins, Provisional and Protective Measures].
308. See Lawrence Collins, United States Supreme Court Rejects Mareva Injunctions, 115 LAW Q. REV. 601 (1999). [B] oth the majority and minority opinions ignore the comity implications of the exercise of injunctive power in relation to assets abroad. The jurisdiction under New York state law to make a pre-judgment attachment of assets was not available because the assets were situated abroad. It must be very doubtful whether an English court would have granted an injunction in like circumstances against a foreign defendant, having no assets or business in England, which was making a bona fide effort to restructure its debt and to al with employee compensation claims and revenue claims in the country where its business was centred. Id. at 604; see also Lawrence Collins, Provisional and Protective Measures in International Litigation, 234 RECUEIL DES COURS 19 (1992) [hereinafter Collins, Provisional and Protective Measures].
309. See Grupo Mexicano, 119 S. Ct. at 1973.
310. See Transcript of Oral Argument, Grupo Mexicano (No. 98-231), available in 1999 WL 216177. QUESTION: And you think we have the same freedom in developing new rules of equity as the - as the House of Lords does? I mean, don't forget the supreme court of England is the House of Lords. MR. DAYS: I understand that, Justice Scalia. Id. at *40. This may not be an accurate picture of the English experience. Mareva injunctions were an innovation of the Court of Appeal, and they received "only mild support" from the House of Lords prior to statutory amendments in 1981. Lawrence Collins, The Territorial Reach of Mareva Injunctions, 105 LAW Q. REV. 262, 264 (1989) [hereinafter Collins, Territorial Reach]; see also Siskina v. Distros Compania Naviera S.A., A.C. 210 (Eng. 1979); Lawrence Collins, The Legacy of The Siskina, 108 LAW Q. REV. 175 (1992) [hereinafter Collins, Legacy].
311. See Transcript of Oral Argument, Grupo Mexicano (No. 98-231), available in 1999 WL 216177. QUESTION: And you think we have the same freedom in developing new rules of equity as the - as the House of Lords does? I mean, don't forget the supreme court of England is the House of Lords. MR. DAYS: I understand that, Justice Scalia. Id. at *40. This may not be an accurate picture of the English experience. Mareva injunctions were an innovation of the Court of Appeal, and they received "only mild support" from the House of Lords prior to statutory amendments in 1981. Lawrence Collins, The Territorial Reach of Mareva Injunctions, 105 LAW Q. REV. 262, 264 (1989) [hereinafter Collins, Territorial Reach]; see also Siskina v. Distros Compania Naviera S.A., A.C. 210 (Eng. 1979); Lawrence Collins, The Legacy of The Siskina, 108 LAW Q. REV. 175 (1992) [hereinafter Collins, Legacy].
312. See Transcript of Oral Argument, Grupo Mexicano (No. 98-231), available in 1999 WL 216177. QUESTION: And you think we have the same freedom in developing new rules of equity as the - as the House of Lords does? I mean, don't forget the supreme court of England is the House of Lords. MR. DAYS: I understand that, Justice Scalia. Id. at *40. This may not be an accurate picture of the English experience. Mareva injunctions were an innovation of the Court of Appeal, and they received "only mild support" from the House of Lords prior to statutory amendments in 1981. Lawrence Collins, The Territorial Reach of Mareva Injunctions, 105 LAW Q. REV. 262, 264 (1989) [hereinafter Collins, Territorial Reach]; see also Siskina v. Distros Compania Naviera S.A., A.C. 210 (Eng. 1979); Lawrence Collins, The Legacy of The Siskina, 108 LAW Q. REV. 175 (1992) [hereinafter Collins, Legacy].
313. See Transcript of Oral Argument, Grupo Mexicano (No. 98-231), available in 1999 WL 216177. QUESTION: And you think we have the same freedom in developing new rules of equity as the - as the House of Lords does? I mean, don't forget the supreme court of England is the House of Lords. MR. DAYS: I understand that, Justice Scalia. Id. at *40. This may not be an accurate picture of the English experience. Mareva injunctions were an innovation of the Court of Appeal, and they received "only mild support" from the House of Lords prior to statutory amendments in 1981. Lawrence Collins, The Territorial Reach of Mareva Injunctions, 105 LAW Q. REV. 262, 264 (1989) [hereinafter Collins, Territorial Reach]; see also Siskina v. Distros Compania Naviera S.A., A.C. 210 (Eng. 1979); Lawrence Collins, The Legacy of The Siskina, 108 LAW Q. REV. 175 (1992) [hereinafter Collins, Legacy].
314. "English civil procedure has consigned the term 'Mareva injunction' to legal history. The order is described as a 'freezing injunction' in the Civil Procedure Rules which took effect 26 April 1999." Peter Devonshire, Mareva Injunctions and Third Parties: Exposing the Subtext, 62 MOD. L. REV. 539, 539 n.* (1999).
315. See Respondents' Brief at 34-36, Grupo Mexicano, (No. 98-231).
316. See 119 S. Ct. at 1978 (Ginsburg, J., dissenting).
317. See MILLAR, supra note 143, at 481-85; Wasserman, supra note 70, at 336-37.
318. See Collins, Provisional and Protective Measures, supra note 267, at 29, 112; Collins, Territorial Reach, supra note 269, at 263-64.
319. See Collins, Provisional and Protective Measures, supra note 267, at 29, 112; Collins, Territorial Reach, supra note 269, at 263-64.
320. See, e.g., Babanaft Int'l Co. v. Bassatne, 2 W.L.R. 232 (Eng. 1989); David Capper, Worldwide Mareva Injunctions, 54 MOD. L. REV. 329 (1991); Collins, Territorial Reach, supra note 269.
321. See, e.g., Babanaft Int'l Co. v. Bassatne, 2 W.L.R. 232 (Eng. 1989); David Capper, Worldwide Mareva Injunctions, 54 MOD. L. REV. 329 (1991); Collins, Territorial Reach, supra note 269.
322. See, e.g., Bermann, supra note 140, at 567-76; Collins, Territorial Reach, supra note 269; Zuckerman, supra note 166.
323. See, e.g., Case C-391/95, Van Udem Maritime BV v. KG in Firma Deco-Line, [1999] I.L. Pr. 73; Bermann, supra note 140, at 586-92; Lawrence Collins, Provisional Measures, the Conflict of Laws and the Brussels Convention, 1 Y.B. EUR. L. 249 (1981); Gerry Maher & Barry J. Rodger, Provisional and Protective Remedies: The British Experience of the Brussels Convention, 48 INT'L & COMP. L.Q. 302 (1999); Andrew Lenon, Mareva Injunctions in Support of Foreign Proceedings, 147 NEW L.J. 1234 (1997);
324. See, e.g., Case C-391/95, Van Udem Maritime BV v. KG in Firma Deco-Line, [1999] I.L. Pr. 73; Bermann, supra note 140, at 586-92; Lawrence Collins, Provisional Measures, the Conflict of Laws and the Brussels Convention, 1 Y.B. EUR. L. 249 (1981); Gerry Maher & Barry J. Rodger, Provisional and Protective Remedies: The British Experience of the Brussels Convention, 48 INT'L & COMP. L.Q. 302 (1999); Andrew Lenon, Mareva Injunctions in Support of Foreign Proceedings, 147 NEW L.J. 1234 (1997);
325. See, e.g., Case C-391/95, Van Udem Maritime BV v. KG in Firma Deco-Line, [1999] I.L. Pr. 73; Bermann, supra note 140, at 586-92; Lawrence Collins, Provisional Measures, the Conflict of Laws and the Brussels Convention, 1 Y.B. EUR. L. 249 (1981); Gerry Maher & Barry J. Rodger, Provisional and Protective Remedies: The British Experience of the Brussels Convention, 48 INT'L & COMP. L.Q. 302 (1999); Andrew Lenon, Mareva Injunctions in Support of Foreign Proceedings, 147 NEW L.J. 1234 (1997);
326. See Anton Piller K.G. v. Manufacturing Processes Ltd., [1976] 2 W.L.R. 162 (Eng. 1976); Collins, Provisional and Protective Measures, supra note 267, at 180 ("The English Anton Piller order is a drastic form of injunction requiring a defendant to give the plaintiff entry to the defendant's premises for the purpose of discovering material which, for example, infringes copyright or is a breach of confidence."). Acknowledging the value of such orders in certain intellectual property and trade secret cases, Collins goes on to note that there is little doubt that the exercise of the jurisdiction gives rise to serious misgivings about the propriety of granting drastic and oppressive orders against defendants who are neither notified nor heard, and who must obey the order before they have an opportunity to apply to the court to have it discharged. Id. at 180-81 (footnotes omitted).
327. See Anton Piller K.G. v. Manufacturing Processes Ltd., [1976] 2 W.L.R. 162 (Eng. 1976); Collins, Provisional and Protective Measures, supra note 267, at 180 ("The English Anton Piller order is a drastic form of injunction requiring a defendant to give the plaintiff entry to the defendant's premises for the purpose of discovering material which, for example, infringes copyright or is a breach of confidence."). Acknowledging the value of such orders in certain intellectual property and trade secret cases, Collins goes on to note that there is little doubt that the exercise of the jurisdiction gives rise to serious misgivings about the propriety of granting drastic and oppressive orders against defendants who are neither notified nor heard, and who must obey the order before they have an opportunity to apply to the court to have it discharged. Id. at 180-81 (footnotes omitted).
328. See supra note 49.
329. See Burbank, supra note 254, at 135-39; see also Brief of the Amicus Curiae the Dominican Republic in Support of Petitioners, Grupo Mexicano (No. 98-231). [T]he lower court's injunctive "remedy" sequestering the debtor's foreign property simply reversed the "preference" posited by the Court of Appeals, by preferring United States creditors over non-United States creditors with respect to property located outside the United States and otherwise available to satisfy foreign creditors' claims. The freeze of petitioners' assets effectively prevented satisfaction of the claims of Mexican creditors until the claims of the United States creditors were decided. When the district court then took the next step and ordered the assets to be transferred to the United States creditors, it effectively converted the unsecured United States creditors into fully secured creditors. Id. at 15-16.
330. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988); Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522 (1987); Burbank, supra note 254, at 126-27, 131-132, 137.
331. See Grupo Mexicano, 119 S. Ct. at 1974 n.11 (1999) (discussing "unregulated competition among the creditors of a struggling debtor"). For an argument that preliminary injunctions are less likely than attachments to result in involuntary bankruptcies, see Wasserman, supra note 70, at 301-02. Of course, attachment was not an available alternative in Grupo Mexicano, and Professor Wasserman recognizes that, even when there is a choice, her argument rests on empirical assumptions that may not be accurate. See id. at 302 n.171.
332. See Memorandum from Jay L. Westbrook to A.L.I. Council 1 (Nov. 23, 1999), reprinted in A.L.I., TRANSNATIONAL INSOLVENCY PROJECT: PRINCIPLES OF COOPERATION IN TRANSNATIONAL BANKRUPTCY CASES AMONG MEMBERS OF THE NORTH AMERICAN FREE TRADE AGREEMENT (1999). Phase II of the Project is an attempt to state principles and procedures that will permit better coordination of transnational bankruptcy cases within the NAFTA under existing law. It also includes recommendations for legislation or international agreements to put in place reforms that cannot be fully achieved without a change in existing law in one or more of the NAFTA countries. Id.; see also Capper, supra note 275, at 347-48 (calling for international treaties on recognition and enforcement of interlocutory orders).
333. See Memorandum from Jay L. Westbrook to A.L.I. Council 1 (Nov. 23, 1999), reprinted in A.L.I., TRANSNATIONAL INSOLVENCY PROJECT: PRINCIPLES OF COOPERATION IN TRANSNATIONAL BANKRUPTCY CASES AMONG MEMBERS OF THE NORTH AMERICAN FREE TRADE AGREEMENT (1999). Phase II of the Project is an attempt to state principles and procedures that will permit better coordination of transnational bankruptcy cases within the NAFTA under existing law. It also includes recommendations for
334. See Zschernig v. Miller, 389 U.S. 429 (1968); Natsios v. National Foreign Trade Council, 181 F.3d 38 (1st Cir.), cert. granted, 120 S. Ct. 525 (1999); Stephen B. Burbank, Federal Judgments Law: Sources of Authority and Sources of Rules, 70 TEX. L. REV. 1551, 1571-82 (1992).
335. But the Court would have to make a bunch of mistakes in order to forclose application of state law, including holding that Rule 64 does not apply to injunctions and that "under Rule 65" a federal court is not required to follow state law authorizing provisional injunctive relief. See supra text accompanying notes 130-73.
336. See supra text accompanying notes 214-17.
337. The so-called "Babanaft proviso" derives from a case involving a post-judgment injunction. See Babanaft Int'l Co. S.A. v. Bassatne, 2 W.L.R. 232 (Eng. 1989); Collins, Provisional and Protective Measures, supra note 267. The effect of this proviso is that in principle acts by third parties (i.e. persons who are not themselves parties to the action) abroad do not give rise to a contempt of court by them unless and until a foreign court enforces or recognizes the English order. Id. at 119.
338. The so-called "Babanaft proviso" derives from a case involving a post-judgment injunction. See Babanaft Int'l Co. S.A. v. Bassatne, 2 W.L.R. 232 (Eng. 1989); Collins, Provisional and Protective Measures, supra note 267. The effect of this proviso is that in principle acts by third parties (i.e. persons who are not themselves parties to the action) abroad do not give rise to a contempt of court by them unless and until a foreign court enforces or recognizes the English order. Id. at 119.
339. Such matters are now usually governed by state law, even in federal court. FED. R. CIV. P. 69 (a) provides: Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held. Id. GMD abandoned its appeal from the final injunction, see supra text accompanying note 52, because of their view that "[u]nder New York law, a judgment creditor can obtain a restraining notice preventing the judgment debtor from transferring or assigning any property until the judgment is satisfied," Petitioners' Reply Brief at 5 n.1, Grupo Mexicano, (No. 98-231) (citation omitted) (emphasis in original). Any such federal legislative initiative should also probably include arbitration. See Note, The Use of Pre-Judgment Attachment and Temporary Injunctions in International Commercial Arbitration Proceedings: A Comparative Analysis of British and American Approaches, 50 U. PITT. L. REV. 667 (1989).
340. See supra text accompanying notes 268-78. An additional reason, as well as an opportunity, to fashion federal legislation on these matters will be presented if current negotiations at The Hague yield a treaty on jurisdiction and foreign judgments to which the United States becomes a party. The current draft's Article 13 deals with provisional and protective measures as follows: 1. A court having jurisdiction under Articles 3 to 12 to determine the merits of the case has jurisdiction to order any provisional or protective measures. 2. The courts of a state in which property is located have jurisdiction to order any provisional or protective measures in respect of that property. 3. A court of a contracting state not having jurisdiction under paragraphs 1 or 2 may order provisional or protective measures, provided that - a) their enforcement is limited to the territory of the state, and b) their purpose is to protect on an interim basis a claim on the merits which is pending or to be brought by the requesting party. HAGUE CONFERENCE ON PRIVATE INT'L LAW, PRELIMINARY DRAFT CONVENTION ON JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS 6 (Oct. 30, 1999). This and other documents pertaining to the proposed convention are available at . The American Law Institute has begun a project to prepare legislation implementing the convention, if successfully concluded, or to propose legislation suitable in the absence of such a treaty. See American Law Institute, International Jurisdiction and Judgments Project, Council Memorandum No. 1 (Nov. 19, 1999).
341. See supra text accompanying notes 268-78. An additional reason, as well as an opportunity, to fashion federal legislation on these matters will be presented if current negotiations at The Hague yield a treaty on jurisdiction and foreign judgments to which the United States becomes a party. The current draft's Article 13 deals with provisional and protective measures as follows: 1. A court having jurisdiction under Articles 3 to 12 to determine the merits of the case has jurisdiction to order any provisional or protective measures. 2. The courts of a state in which property is located have jurisdiction to order any provisional or protective measures in respect of that property. 3. A court of a contracting state not having jurisdiction under paragraphs 1 or 2 may order provisional or protective measures, provided that - a) their enforcement is limited to the territory of the state, and b) their purpose is to protect on an interim basis a claim on the merits which is pending or to be brought by the requesting party. HAGUE CONFERENCE ON PRIVATE INT'L LAW, PRELIMINARY DRAFT CONVENTION ON JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS 6 (Oct. 30, 1999). This and other documents pertaining to the proposed convention are available at . The American Law Institute has begun a project to prepare legislation implementing the convention, if successfully concluded, or to propose legislation suitable in the absence of such a treaty. See American Law Institute, International Jurisdiction and Judgments Project, Council Memorandum No. 1 (Nov. 19, 1999).
342. Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. CAL. L. REV. 315, 316 n.10 (1999) (quoting COMMENCEMENT OFF., HARVARD UNIV., FORM OF CONFERRING DEGREES 12 (1998)).