'Procedural Swift': Complex Litigation Reform, State Tort Law, and Democratic Values

Abstract

This Article makes the claim that the judicial power of the federal courts is being deployed - through complex litigation reform - to undermine the spirit, if not the letter, of the Erie Doctrine. The core notion is that the goal of modernizing procedure is not a neutral one when viewed pragmatically. Instead, problematizing complex litigation problematizes the question of which sector of government, state or federal, should resolve the policy questions that arise. By using the device of regulating procedure and the toehold of diversity jurisdiction, the federal judicial system has increased its actual control of state substantive law dramatically. This phenomenon is significant not only for the impact on federalism, but also for the damage it does to democratic legitimacy.

Keywords: federalism, Erie, tort reform, complex litigation