Erie's International Effect: A Reply
15 Pages Posted: 20 Jun 2013 Last revised: 30 Jan 2015
Date Written: 2013
Currently, when resolving transnational choice of law issues, federal district courts unflinchingly follow state choice of law rules to determine the governing substantive law (U.S. state or foreign). Federal courts believe they are compelled by the Erie doctrine to follow state choice of law rules even in transnational cases because, according to the Supreme Court in a decision from the 1970s that predates the substantial expansion of transnational litigation, a “federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”
In When Erie Goes International (the Article), I endeavored to open up a conversation concerning the Erie doctrine’s applicability in transnational cases, and explored the concrete questions raised by the application of the Erie doctrine to transnational choice of law. In light of Erie’s twin aims of discouraging forum shopping between state and federal courts and avoiding the inequitable administration of the laws, I put forward a suggested approach to encourage courts to more forthrightly engage in analyzing transnational conflicts cases.
In exploring Erie’s transnational effects in the choice of law context, I had several hopes. First, I hoped to encourage a more sophisticated understanding of the unique dynamics that transnational litigation presents for domestic courts. Second, I hoped to explain that transnational and domestic cases might be different and could be treated differently by courts. Third, I wanted to test empirically the impact that the Erie doctrine might have on other doctrines. Fourth, I hoped that bringing the unique issues presented by transnational litigation in the Erie context to light would encourage further scholarly study, leading to better outcomes in transnational choice of law cases.
In light of these goals, I was pleased to see that one of the leading scholars of the Erie doctrine, Professor Michael Steven Green, paid me the high honor of engaging the Article. In this Reply, I will follow his thoughtful lead and make one point of clarification before exploring more critical points. In Part I I clarify that the Article was limited to transnational choice of law and developing federal procedural common law rules for transnational choice of law cases. However, even with that limitation, it has relevance to other transnational areas impacted by the Erie doctrine. As I explain in Part II, my critical point is that the Erie doctrine, as applied in transnational choice of law, may have effects on transnational forum shopping. I conclude in Part III by illustrating briefly where continuing the conversation on Erie’s international effects might take us.
Keywords: choice of law, forum shopping, Erie, transnational, diversity, alienage
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