Reconceptualizing the Federal Circuit's Choice of Law Doctrine: A Blend of Reverse Erie, Interest Analysis, and Federal Common Law

33 Federal Circuit Bar Journal, Forthcoming

30 Pages Posted: 19 Dec 2023

See all articles by Janelle Barbier

Janelle Barbier

UC Berkeley School of Law; Santa Clara University, School of Law, Students

Date Written: November 9, 2023

Abstract

The Federal Circuit occupies a unique niche in the federal Court of Appeals system. Instead of hearing all cases from a circumscribed geographical region, the Federal Circuit hears limited case types from all regions within the United States. This organization places the Federal Circuit in a precarious position––it must decide when to create and apply its own law and when to adhere to the law of the regional circuit from which it receives an appeal. “Choice of law” quandaries are not new. Like the Federal Circuit, all courts face situations where overlapping laws from different jurisdictions each could govern a case. In deciding which law to apply, courts utilize a variety of methods; the method selected––or imposed––provides the choice of law framework for the forum hearing the case. Often, the process involves ascertaining whether a conflict between the laws of multiple jurisdictions is present and if so, how best to resolve that conflict. Sometimes, the “solution” to a conflict necessitates development of federal common law.

Under a modern day “interest analysis” approach, courts ascertain interests by inquiring into the policies behind a law. When both legitimate federal and state interests exist, the Supremacy Clause requires that federal law preempt state law if the two laws are in direct conflict. The landmark case of Erie Railroad v. Tompkins recognized this tenet of federalism––unless a federal law is directly on point, a federal court siting in diversity is obligated to apply all state substantive law, including the state’s common law. But the rule is hazy because a battle rages over the million-dollar question––what qualifies as substantive law? A similar phenomenon exists when state courts entertain federal actions; scholars dub these “reverse Erie” cases. And in both Erie and reverse Erie cases, courts have the authority to create federal common law when state law conflicts with preexisting federal policy.

Mixing these ingredients together, I recast the Federal Circuit’s choice of law framework as a unified blend of three principles: (1) the court “acts” like a state court in a reverse Erie situation; (2) the court’s choice of law doctrine reflects an interest analysis approach; and (3) the court creates federal common law when necessary to carry out congressional directives. In light of these observations, I argue that the Federal Circuit should abandon its facial substance-procedure classification in favor of the above framework. This Article develops and defends this thesis.

Keywords: Patent law, Federal Circuit, Choice of Law, Conflict of Laws, Appellate Law

Suggested Citation

Barbier, Janelle, Reconceptualizing the Federal Circuit's Choice of Law Doctrine: A Blend of Reverse Erie, Interest Analysis, and Federal Common Law (November 9, 2023). 33 Federal Circuit Bar Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4637232 or http://dx.doi.org/10.2139/ssrn.4637232

Janelle Barbier (Contact Author)

UC Berkeley School of Law ( email )

302 JSP
2240 Piedmont Ave
Berkeley, CA 94720
United States

Santa Clara University, School of Law, Students ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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