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86 Notre Dame L. Rev. 939 (2011)


This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar prohibition, controlled exclusively. In a 5-4 decision, the Court applied its “familiar framework,” first articulated in Hanna v. Plumer, to find that the language of Rule 23 was “unambiguous,” that the Rule addressed the same questions as the state law, that it satisfied the standards of validity contained in the Rules Enabling Act (REA) as a “rule of ... procedure,” and that any incidental effects on the outcome of the litigation or encouragement of forum shopping were irrelevant.

In this Article, I argue that the Court got it wrong, and that application of the learning from horizontal analysis would have led to a sounder result. Choice of law jurisprudence seeks to avoid unnecessary conflicts, in part by giving the law of one or the other jurisdiction a more limited reading. Justice Ginsburg’s dissent in Shady Grove adopted that approach, quoting from the title of an article by California Supreme Court Chief Justice Roger Traynor, to ask “Is this Conflict Really Necessary?” By contrast, although the majority cited a canon of construction which would have recognized and deferred to the important goals and interests of New York, it chose to give Rule 23 an unnecessarily broad reading. After explaining why the dissent’s analysis was preferable, I then discuss in detail the majority’s conclusion that the Rule passed muster under the REA, again arguing that horizontal choice of law jurisprudence would have been instructive in defining and distinguishing “substance” and “procedure.”


Reprinted with permission of the Notre Dame Law Review.



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