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74 Notre Dame L. Rev. 1235 (1998-1999)


I have taught Civil Procedure for the past twenty-five years. Having returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examining the Erie 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 determinations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law determinations are of course made in a horizontal setting, i.e., in determining 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 action is being heard in a federal court based on a claim arising under state law, 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 law rules and Erie counsel that on some occasions, the forum will, or even must, defer to the law of another sovereign.

The question then is whether, despite these differences, the similarities are sufficient to allow principles from the choice of law arena to inform the Erie analysis. Although it is probable that many of the determinations that must be made by the federal courts would be unaffected by invocation of learning from horizontal conflict of law determinations, I conclude that some aspects of this methodology - and particularly interest analysis and other modern policy-based choice of law principles - would prove useful in the Erie setting. First, the extension to Erie cases of one important device employed in many modern conflicts cases-the characterization of certain differences in legal rules as false conflicts, leading to the use of the law of the only jurisdiction with a real interest in having its legal rule applied to the dispute - would reduce the number of situations in which Erie questions must be resolved. In addition, these modern techniques for resolving true conflicts between the laws of two or more states would prove instructive for resolving clashes between state law and federal judge-made law.


Reprinted with permission of the Notre Dame Law Review.



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