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From:
Date: 09 May 2002
Time: 19:34:06
I am assuming that the mistake under Hart is that the court did not look to Texas state law since the case was in diversity and Federal common law dictates that state RJ law applies. In Semtek, Scalia seems to be doing what we think the court should have done in Hart, i.e. deferring to state law in a diversity case. I understand that his position undercuts Rule 41(b) but how else could Scalia defer to state law and still preserve Rule 41(b)? Could he defer to the state without undercutting the rule?