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The Erie Doctrine Revisited: How a Conflicts Perspective Can Aid the Analysis, 74 Notre Dame L Notre Dame Law School NDLScholarship Journal Articles Publications 1999 The rE ie Doctrine Revisited: How a Conflicts Perspective Can Aid the Analysis Joseph P. Bauer Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Civil Procedure Commons, Common Law Commons, and the Jurisdiction Commons Recommended Citation Joseph P. Bauer, The Erie Doctrine Revisited: How a Conflicts Perspective Can Aid the Analysis, 74 Notre Dame L. Rev. 1235 (1998-1999). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/166 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARTICLE THE ERIE DOCTRINE REVISITED: HOW A CONFLICTS PERSPECTIVE CAN AID THE ANALYSIS Joseph P. Bauer* INTRODUCrION ................................................... 1236 I. THE i'R DorRiNE: A BRF SURVEY ...................... 1239 A. Swift v. Tyson and Erie v. Tompkins .................. 1239 B. Basic Principles ....................................... 1243 1. Is There a Clash Between State and Federal Law?. 1243 2. Dealing with a Clash: What Is the Source of the FederalRule? ..................................... 1248 a. Clashes with the U.S. Constitution ............ 1248 b. Clashes with Federal Statutes ................. 1250 c. Clashes with Federal Rules ................... 1252 d. Clashes with Federal Judge-Made Law ........ 1254 3. Approaches for Resolving Clashes ................ 1255 a. Substantive-Procedural ....................... 1255 b. Outcome-Determination ...................... 1257 c. Twin Aims of Erie ............................ 1259 d. Balancing Federal and State Interests ......... 1262 II. INSIGHTS FROM CoNFLICTs ANALYsis ....................... 1264 A. Is There a Clash2...................................... 1264 * Professor of Law, Notre Dame Law School. A.B. Univ. of Pa. 1965; J.D. Harvard Law School 1969. Earlier versions of this Article were presented at faculty colloquia at Notre Dame Law School, Quinnipiac College School of Law, and Seton Hall Law School; I am very grateful for the suggestions made on those occasions. I wish to thank in particular Professors Howard Erichson, Richard Freer, William Kelley, William Reynolds, William Richman, John Robinson, Patrick Schiltz, Symeon Symeonides, Jay Tidmarsh, Louise Weinberg, and Stephen Yeazell, who read and commented on drafts of this Article; as is customary, I relieve them of any responsibility for errors that remain despite their suggestions. 1235 1236 NOTRE DAME LAW REVIEW [VOL. 74:4 B. Applying Conflicts Methodologies to Four Approaches Used Under Erie to Resolve Clashes .......................... 1266 1. Substantive-Procedural ........................... 1266 2. Outcome-Determination .......................... 1270 3. Twin Aims of Erie ................................ 1271 4. Balancing Federal and State Interests ............. 1281 CONCLUSION ..................................................... 1299 INTRODUCTION I have taught Civil Procedure for the past twenty-five years. Hav- ing returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examin- ing the Erie1 doctrine from the vantage point of both of these subject areas. My goal was to see whether a combination of learning from these two related disciplines would introduce additional coherence into the analysis of this topic. In one sense, the Erie doctrine and traditional choice of law de- terminations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law de- terminations are of course made in a "horizontal" setting, i.e., in de- termining which state's or country's law to apply to an issue, with respect to a transaction touching on two or more jurisdictions. Erie, on the other hand, is implicated in a "vertical" setting, where the ac- tion is being heard in a federal court based on a claim arising under state law,2 and where it is necessary to determine whether the federal court may apply federal law or whether it must apply state law to an issue in the lawsuit. One alternative would be for the forum always to apply its own law-whether that forum is a state court deciding whether to apply its own rule or that of another jurisdiction, or whether it is a federal court deciding whether to apply state or federal law. That approach would certainly be simpler and more efficient. Instead, both choice of 1 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). 2 A shorthand way of describing these situations is that Erie commands that fed- eral courts usually will apply state law in cases brought in those courts based on diver- sity jurisdiction. In fact, of course, the action may be in federal court because the plaintiff asserts a federal question, and the state law claim is heard in the exercise of the federal court's supplemental jurisdiction, or alternatively, the state law claim arises out of a cross-claim, counterclaim, or third party claim. This Article will also adhere to the "diversity jurisdiction" convention. See generally Peter Westen &Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity?, 78 MICH. L. REv. 311 (1980). 1999] THE ERIE DOCTRINE REVISITED 1237 law rules and Erie counsel that on some occasions, the forum will, or even must, defer to the law of another sovereign. To a large extent, similar reasons underlie this deference. Among the frequently stated rationales are the desire for uniformity of outcome; the predictability3 and certainty that flow from that ex- pected uniformity; the goal of affording faimess to the parties; comity based on respect for the sovereignty of other jurisdictions and their interests in the parties and the dispute, and the resultant enhancing of harmonious relations; facilitation of interstate and international commerce and travel; promoting ease of judicial administration; and the oft-cited aphorism, the wish to prevent "forum shopping."4 Yet, there are other motivations. For the most part, the willing- ness to defer in the horizontal setting to the rules of another jurisdic- tion is the product of comity.5 In the vertical setting, that deference is the result of federalism, and it may in fact be required by the Constitu- tion and/or by statute. State vs. state6 choice of law and Erie also present other striking differences. In the horizontal setting, it would not be inappropriate for the forum, in choosing between the legal rules of more than one jurisdiction, initially to conclude that either choice would be "correct" or acceptable. Indeed, it is not unlikely that different fora, applying different choice of law principles to an identical factual setting, would resolve to apply the laws of differentjurisdictions to that same transac- tion. In contrast, in the Erie setting, there can only be one correct 3 This predictability is important both in advance of the dispute, so that the parties can make plans with knowledge of their likely rights and duties, and also after the dispute has arisen, so that the parties can assess their potential liability, in part to weigh the advisability of settlement. 4 See, e.g., Schultz v. Boy Scouts of Am., 480 N.E.2d 679, 687 (N.Y. 1985) (finding that reasons for forum state to apply law of parties' common domicile include signifi- cant reduction in "forum shopping opportunities," rebuttal of charge that "forum- locus is biased in favor of its own laws and in favor of rules permitting recovery," advancement of "concepts of mutuality and reciprocity," and production of "rule that is easy to apply and brings a modicum of predictability and certainty"). See also RE- SrATEMENT (SECOND) OF CONFLICT OF LAxvs § 6(2) & cmts. c-k (1971) (identifying choice of law principles). But cf. Note, Forum Shopping Reconsidered, 103 HARV. L. REV. 1677, 1677 (1990) ("[A] ctions described as 'forum shopping' lie on a continuum of activities, many of which are integral to the legal system and may actually enhance its capacity to provide needed remedies.... [F] orum shopping in fact furthers legiti- mate goals of the legal system."). 5 There are, of course, some constitutional limits on a forum's ability to apply its law to a dispute with which it has few or no contacts. See infra note 158. 6 Throughout this Article, in this horizontal choice of law setting, a "state" may also include a foreign country. 1238 NOTRE DAME LAW REVIEW [VCOL. 74:4 answer. Either federal law applies to a particular issue or state law 7 applies to that issue, but never both. In the horizontal setting, there are a variety of choice of law ap- proaches that have been suggested by courts, by the Restatements, and by academics, and a state is free to choose among these alterna- tives. Having opted for one of these methodologies, there are only limited constraints, of either a constitutional or statutory nature,8 on the application of that choice in any concrete situation. 9 In contrast, in the vertical setting, although there is disagreement at the margins as to the appropriate rules-some of these disagreements prompted the writing of this Article-for the most part, the limits on this form of choice of law can be found in the major Supreme Court cases and in some lower court decisions fleshing out the Erie doctrine. And, as just noted, Erie's mandate-that a federal court sometimes must apply state law to particular questions of law-is the product both of consti- tutional and statutory (principally the Rules of Decision Act 0 ) imperative. Finally, in the horizontal setting, the basis for choosing between the laws of different states and of foreign countries is that each has some contacts with or interest in the parties and the dispute-whether it be the domicile of the plaintiff or the defendant, the situs of the tort, the place in which the contract was to be performed, or a myriad of other possibilities-that support the application of its rules.
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