Abstract

http://ssrn.com/abstract=1691799
 


 



When Erie Goes International


Donald Earl Childress III


Pepperdine University School of Law

October 13, 2010

Northwestern University Law Review, Vol. 105, 2011
Pepperdine University Legal Studies Research Paper No. 2010/20

Abstract:     
This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.

Number of Pages in PDF File: 50

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Date posted: October 13, 2010 ; Last revised: March 20, 2012

Suggested Citation

Childress III, Donald Earl, When Erie Goes International (October 13, 2010). Northwestern University Law Review, Vol. 105, 2011; Pepperdine University Legal Studies Research Paper No. 2010/20. Available at SSRN: http://ssrn.com/abstract=1691799

Contact Information

Donald Earl Childress III (Contact Author)
Pepperdine University School of Law ( email )
24255 Pacific Coast Highway
Malibu, CA 90263
United States
310-506-4807 (Phone)
HOME PAGE: http://www.law.pepperdine.edu/academics/faculty/childress.html
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