Civil Procedure/Conflicts

I have written seven papers on Erie and the conflict of laws (and have a number of other pieces in progress):

Horizontal Erie and the Presumption of Forum Law, 109 Michigan Law Review 1237 (2011)

In this article, I argue that a state court interpreting the law of a sister state is subject to the same obligations that Erie puts upon a federal court sitting in diversity: The state court must decide as it predicts the sister state’s supreme court would. Surprisingly, the Supreme Court has not required state courts to use the predictive method with respect to unsettled sister state law. And state courts have taken advantage of this freedom, by employing a presumption that the unsettled law of a sister state is the same as their own.

This article fills a big hole in the literature. Although the issue of a state court’s constitutional obligations when interpreting the law of a sister state is clearly fundamental, it has never received detailed academic discussion before. It also has practical consequences, because the presumption of similarity to forum law can play an important role in class action certification. 

Erie’s Suppressed Premise, 95 Minnesota Law Review 1111 (2011)

This article introduces a fundamental puzzle about Justice Brandeis's argument in Erie that has never been explored in detail before: Under Erie a federal court interpreting state law must defer to the decisions of the supreme court of that state. But what if the state supreme court does not want deference? What if it wants federal courts to come to their own conclusions about the state’s law? Brandeis never explains why federal courts should not adopt the approach of Swift v. Tyson toward a state's law, if that is what the state supreme court wants them to do. 

A similar puzzle arises in connection with the predictive method. Many states do not care whether federal courts use the predictive method concerning their unsettled law. If that is so, how can the Supreme Court claim that the predictive method is demanded by Erie?

One solution to this puzzle is to bite the bullet and conclude that federal courts should decide questions about the binding effect of state court decisions by reference to state law. The result would be that federal courts would choose between Swift and Erie on the basis of the state’s own views. A similar state-by-state approach would apply to whether a federal court is obligated to use the predictive method.

I offer a different solution. Erie, I argue, does not merely put obligations on federal courts. It also obligates a state supreme court not to free federal courts of the duty to defer to its decisions about the state's law, unless it is willing to free the courts of its own state of the same duty. A state supreme court’s views about the binding effect of its decisions must be jurisdictionally neutral. They cannot discriminate on the basis of the court system where this effect is felt. For the same reason, a state supreme court cannot free federal courts of the duty to interpret the state's unsettled law according to the predictive method, except through inconceivable changes in the way that unsettled law is treated in the state's own courts.

I end with a brief discussion of a similar puzzle in connection with state choice-of-law rules. For those familar with conflicts, the issue concerns renvoi, that is, whether the forum should look to a state's choice-of-law rules when determining whether the state's law applies.

Although it is less likely to be of concern to practitioners, I like this article even better than the Michigan one. Despite the academic scrutiny that Erie and the predictive method have received over the years, I was able to say something new, and pretty radical, about both. I'm also proud of the historical research in the article, in which I uncover state courts' Swiftian views about the common law during the nineteenth and early twentieth centuries.

This article is basically the first half of a larger article - entitled Horizontal Erie and the Choice of Sister State Law - which I sent out to the student-run law reviews and then withdrew. A rewrite of the remaining half, which deals more fully with the renvoi issue, is still in the works.

Choice of Law as General Common Law: A Reply to Professor Brilmayer, in Donald Earl Childress III (ed.), The Role of Ethics in Private International Law 125-35 (Cambridge University Press, 2011)

This is a brief response to a book chapter by Lea Brilmayer. In it, I explore a number of hurdles that must be faced by the position, advocated by Brilmayer, Kim Roosevelt, and Larry Kramer, that courts should respect a state's choice-of-law rules when deciding whether to apply the state's law. 

Law’s Dark Matter, 54 William & Mary Law Review 845-84 (2013)

Dark matter is matter that can be observed only through its gravitational effect on other bodies. The extrajurisdictional effect of a state's laws -- that is, whether they are binding on sister state and federal courts -- is like dark matter, because, absent certification, the state's courts will never have a reason to make an authoritative statement about the issue. Questions of extrajurisdictional effect will be addressed only by sister state and federal courts, which are not in a position to provide authoritative answers. In this symposium piece, I argue that Swift v. Tyson and Erie Railroad v. Tompkins are best understood as guesses about dark matter, that is, the extrajurisdictional effect of state court decisions concerning the general common law. So understood, Swift is not the problematic decision that Justice Brandeis made it out to be in Erie.

I also argue that the problem of dark matter remains to this day and produces positions similar to Swift and Erie. The example I concentrate on is the extrajurisdictional effect of a state's choice-of-law rules. All current choice-of-law approaches are Swiftian: the forum makes claims about the territorial scope of a state's law without considering the state's choice-of-law rules. An Erie approach to choice-of-law rules has been advocated by Lea Brilmayer, Larry Kramer, and Kim Roosevelt. They argue that the forum must respect a state's choice-of-law rules when determining the territorial scope of the state's law. I argue that their Erie alternative is more problematic than
the current Swiftian approach to choice of law and that the issue can be resolved only through certification to state supreme courts.

The Twin Aims of Erie, 88 Notre Dame Law Review 1865-1937 ( 2013)

My Michigan article was about how the constitutional argument in Erie applies horizontally: Just as federal courts sitting in diversity must respect state lawmaking power by deciding as the state supreme court would, so state courts entertaining sister state causes of action must respect sister state lawmaking power by deciding as the sister state supreme court would. My Minnesota article was also about the constitutional argument in Erie - whether the Erie obligations that a federal court sitting in diversity has to respect state supreme court decisions can be controlled by the state supreme court itself.

This article is about a very different issue, unrelated to the constitutional argument in Erie. According to Hanna v. Plumer, 380 U.S. 460, 471 (1965), a federal court sitting in diversity must use forum state law if it is necessary to avoid “forum shopping” and the “inequitable administration of the laws.” It has a reason to use forum state law even if the forum state supreme court does not care whether its law is used - thus rendering Erie irrelevant. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. They are about separation of powers, not federalism. Through the twin aims, state law is incorporated into federal procedural common law in order to serve federal jurisdictional goals.

My justification of the twin aims solves a number of outstanding puzzles, including why Justice Warren mentions the inequitable administration of the laws as a second aim separate from forum shopping; why horizontal differences in procedure between state court systems do not violate the twin aims (but vertical differences can); and why federal courts, but not Congress, are bound by the twin aims.

But the most important part of this article is the discussion of the twin aims outside diversity. The twin aims apply in non-diversity cases, I argue, only if the purposes of the federal statute giving the court jurisdiction recommend them. I therefore examine four  jurisdictional scenarios in order to assess the role of the twin aims in each: a federal court entertaining a federal cause of action, a state court entertaining a federal cause of action (sometimes called reverse-Erie), and a federal court entertaining a state law action under supplemental jurisdiction and bankruptcy. In the course of my argument, I offer a resolution to the current circuit split about whether a federal court sitting in bankruptcy should use federal or forum state choice-of-law rules. I also argue that the Supreme Court has wrongly assumed that the twin aims apply in a reverse-Erie context. As a result, it has improperly limited state courts’ powers when entertaining federal civil rights actions – most recently in Haywood v. Drown, 129 S. Ct. 2108 (2009).

Erie's International Effect, 107 Northwestern University Law Review 1485-1501 (2013)

Previously published at 107 Northwestern University Law Review Colloquy 165-79 (2012). This is a response to Trey Childress's article, When Erie Goes International, 105 Northwestern University Law Review 1531 (2011). In it I express skepticism about whether the Erie doctrine is significantly different when a federal court entertains a non-federal action with international elements.

Vertical Power, 48 U.C. Davis Law Review 73-140 (2014)

A fundamental issue, which I have not discussed in my writing on Erie before, is the extent to which a federal court must respect state procedural law that a state's officials think should be applied by a federal court. An example is when a state binds up a procedural rule (such as a statute of limitations) into a state cause of action that is then brought in federal court. Notice that the twin aims of Erie do not concern this question, for the twin aims are about uniformity between federal and forum state courts whatever the forum state's officials think about the matter.

This article addresses one piece of the puzzle - namely the extent to which a state may legitimately extend its procedural law to federal courts even in the absence of competing federal law. Many legal scholars and federal judges—including Justices Ginsburg and Scalia—have implicitly assumed that a state can extend its procedural law solely to federal courts within its borders. For example, a state might extend its statute of limitations for tort to, and only to, federal courts within the state that are entertaining tort actions (including actions under the tort law of sister states). To date, however, no one has identified this assumption, much less defended it. Drawing upon an example discussed by Chief Justice Marshall in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). I argue that such vertical power does not exist. Not only do states lack a legitimate interest in extending their law vertically, a state’s assertion of vertical power would improperly discriminate against federal courts. If state law applies beyond the state court system, it must do so on the basis of a criterion that can be satisfied by sister state as well as federal courts. This requirement, which I call the principle of coordinancy, has important consequences, not merely for Erie cases, but for any situation in which the federal government seeks to identify legitimate state interests in the activities of federal courts.

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