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

62 Pages Posted: 20 Sep 2007

See all articles by JoEllen Lind

JoEllen Lind

Valparaiso University Law School


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

Suggested Citation

Lind, JoEllen, 'Procedural Swift': Complex Litigation Reform, State Tort Law, and Democratic Values. Akron Law Review, Vol. 37, No. 4, 2004. Available at SSRN: https://ssrn.com/abstract=1015625

JoEllen Lind (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States

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