Citations (4)



The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon

Patrick Joseph Borchers

Creighton University School of Law

Texas Law Review, Vol. 72, p. 79, 1993

The conventional explanation for the inclusion the grant of diversity jurisdiction (i.e., federal court jurisdiction in cases between citizens of different states) in the Constitution and the first Judiciary Act is that it was necessary to prevent state-court discrimination against out-of-staters. However, the weight of the historical evidence supports the conclusion that diversity jurisdiction was also aimed at the application of parochial state laws, particularly state debtor protection enactments. This second purpose of diversity jurisdiction cuts against the Supreme Court's 1938 decision in Erie Railroad v. Tompkins which held that federal courts exercising diversity jurisdiction must apply the same substantive law as their state court counterparts. This article proposes a partially implementing diversity jurisdiction by over-ruling the Supreme Court's 1941 decision in Klaxon v. Stentor Electric which held that the Erie principle also requires federal courts to adhere to state choice-of-law rules. If diversity courts were to apply an independent choice-of-law approach they could avoid the forum-law bias that pervades most of state choice-of-law doctrine.

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Date posted: April 30, 2007  

Suggested Citation

Borchers, Patrick Joseph, The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon. Texas Law Review, Vol. 72, p. 79, 1993. Available at SSRN: http://ssrn.com/abstract=983248

Contact Information

Patrick Joseph Borchers (Contact Author)
Creighton University School of Law ( email )
2500 California Plaza
Omaha, NE 68178
United States
402-280-2874 (Phone)
402-280-3161 (Fax)
HOME PAGE: http://culaw2.creighton.edu
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