Questions on Erie: Application

1. Assume that under New York law, a New York state court ascertaining the law of state A does not seek to predict what the relevant state supreme court would say. It instead acts like a lower court of state A and simply follows old decisions by the Supreme Court of A, even if it is likely that this Supreme Court of A would overrule the old precedent. P (from Michigan) sues D (from New York) in federal court in New York concerning an accident that P and D got into in Michigan. Under New York choice of law rules, Michigan law would apply. There is an old case from the Michigan Supreme Court saying adopting a contributory negligence rather than a comparative fault approach. What does the federal court in New York do, follow the old case or predict what the Michigan Supreme Court would do now?

2. Why isn't Ragan wrongly decided given Hanna? Given Ragan is OK even after Hanna, what should you do when you borrow a state statute of limitations in a federal question case because the federal statute at issue doesn't have its own statute of limitations? If the state tolling rule is to toll at service, should you toll at service or toll at filing?

Szantay

3. Why do door closing statutes exist? Why do the purposes standing behind the statutes suggest that a state law door closing statute should not apply in a diversity case in federal court? What are the countervailing federal policies suggesting that the statute not apply in federal court?

Semtek

4. What does “on the merits” in 41(b) mean in light of Semtek? Given this interpretation, does it make sense to have an exception to a dismissal being on the merits for personal jurisdiction, subject matter jurisdiction, and venue?

5. Pay close attention to questions 3a-b on pp. 743-44 of the casebook. Why is Scalia's opinion in Semtek so wrong about such basic Erie law? What was going on around the same time Semtek was being decided?

6. Semtek is about whether the state law on the claim preclsuive effect of a dismissal should apply in a federal diversity cases? Should all issues of claim preclusion be governed by state law in diversity cases? What about state law on the scope of a claim?

Klaxon

7. Wouldn't the existence of a uniform federal law on choice of law have positive effects, by encouraging the states to go along? Should Congress pass a uniform choice of law statute for federal courts? Could it pass a uniform choice of law statute for all courts, including state courts?