No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Erie's four functions: Reframing choice of law in federal courts
Abstract
This Article seeks to mitigate decades of confusion about the Erie doctrine's purposes, justifications, and content. The Article shows that 'Erie " is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence. 2013 marks Erie's seventy-fifth anniversary. The years have not been kind to Erie and its progeny. Decades of jurisprudence have produced as much consternation as enlightenment. Successive generations of students and lawyers have struggled to understand an ever-expanding constellation of opaque precedents. Even mentioning the word 'Erie " can invoke feelings of dread. That reaction is unfortunate because the issues that Erie confronts are vitally important and endlessly fascinating. Erie addresses the relationship between governments in a federal system, the division of powers within governments, and the essential elements of the rule of law. So how did a doctrine this central to the constitutional order become a morass of often inscrutable decisions? Confusion arises in part because what courts and commentators label "the Erie doctrine" comprises four distinct sets of inquiries serving four distinct functions. Erie governs: (1) the creation of federal law; (2) the interpretation of its scope; (3) the prioritization of federal law relative to state law; and (4) the adoption of non-federal law when federal law is inapplicable. These four inquiries collectively help courts make three kinds of decisions when analyzing choice of law. Courts must determine: (1) which government is an authoritative source of law for a particular dispute; (2) which institution within that government is authoritative; and (3) which rule that institution would endorse. Bundling these distinct functions and choices into a single expansive "Erie " doctrine shrouds decisionmaking in a haze of generalities. Fragmenting Erie into its components highlights how different concerns and criteria are relevant in different contexts, which in turn can help resolve a wide variety of theoretical and practical problems. The Article provides new insights into several recurring doctrinal puzzles. For example, it considers how choice of law rules in federal court are a form of federal common law and whether Klaxon is an appropriate federal common law rule, which types of state institutions federal diversity courts should emulate and thus whether federal courts should attempt to predict the decisions of a states highest court, the extent to which federal courts can create common law that incorporates general law (including customary international law), what default rules should guide interpretation of federal laws that might conflict with state laws, and the distinction between statutory and common law under the Supremacy Clause and Hanna's "twin aims" test.
... Literature [11] takes China's environmental public interest litigation as an example to illustrate that China is increasingly emphasizing civil litigation rights and will help parties to better resolve related civil litigation disputes. Literature [12] analyzes the four components under the label of Elysianism and argues that understanding these components can help clarify the values of justice and also promote the development of legal rules more in line with civil behavior. Literature [13] analyzes the criteria for third-party interveners in civil litigation in the U.S. and argues that the efficiency of the judicial process and class actions in the U.S. can be affected by third-party interveners, which reduces the ability of civil litigation to proceed. ...
... Where, id v denotes the velocity of the particle, id X denotes the position of the particle, w is the inertia weight, 12 , cc is the learning factor, 12 , rr is any number between [0,1], best P is the individual optimal position in the history of the particle, best G is the global optimal position in the history of the particle, and () id Sv denotes the probability of the particle's position id X being taken to 1. ...
... Where, id v denotes the velocity of the particle, id X denotes the position of the particle, w is the inertia weight, 12 , cc is the learning factor, 12 , rr is any number between [0,1], best P is the individual optimal position in the history of the particle, best G is the global optimal position in the history of the particle, and () id Sv denotes the probability of the particle's position id X being taken to 1. ...
The current traditional means of teaching adopt the indoctrination teaching mode. Students passively accept information, learning enthusiasm is not high, and the traditional teaching mode needs to be reconstructed urgently. This paper constructs a blended teaching mode for civil litigation based on the WeChat public platform and provides the implementation process for the blended teaching mode. In order to enable students to obtain civil litigation-related resources more in line with the learning characteristics of the WeChat platform, a multi-objective learning path optimization algorithm is proposed, and the discrete binary particle swarm algorithm is used to optimize and solve the multi-objective learning path. The teaching experiment method is utilized to select the research object and method to study the teaching effect of the blended teaching mode and then obtain the students’ satisfaction with the blended teaching mode. The results show that through the BPSO algorithm, after the number of iterations reaches 150 times, its fitness value is around 10-5, the average running time of the 20 test functions is around 500ms, and the mean value of students’ satisfaction with the blended teaching mode is 9.31 points. The blended teaching mode of civil litigation in the context of the rule of law can help students better establish the thinking of the rule of law and promote the improvement of students’ learning ability, and multi-objective optimization can help students better obtain the optimal learning path.
In Orkin v. Taylor, heirs of Jewish collector Margerete Mauthner claimed that the Nazis had taken a van Gogh painting from her before she fled Germany in 1939, and sued to recover it from film star Elizabeth Taylor, whose father had purchased it in London in 1963. This chapter examines the adjudication of the case, which raised a series of questions of state and federal law concerning the application of the statute of limitations.
Attracted by the perception that certification accords with norms of federalism, and comity, federal courts have applied certification without serious examination of its jurisdictional validity. Close examination of certification's jurisdictional underpinnings reveals that they are contradictory and flawed. Men a federal court certifies questions of law to a state court, the procedural posture is either that of the federal court temporarily relinquishing jurisdiction over the case to the state high court-the "unitary conception" of certification; or that of the federal court abstaining pending resolution of an independent, streamlined case by the state high court-the "binary conception" of certification. The unitary conception is problematic because it may require state courts to exercise the federal judicial power improperly. The binary conception is problematic because it is inconsistent with current Supreme Court precedent. Moreover, although this precedential inconsistency can be mitigated, the binary conception of certification remains inconsistent with the fundamental purpose of federal diversity jurisdiction.
Choice of law is a mess—or so it is said. According to conventional wisdom, choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions. Instead, these decisions are primarily motivated by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. They are also highly unpredictable. This Article argues that these "mess" claims do not accurately describe at least one domain of choice of law—international choice of law—and it demonstrates what is at stake in this debate for global governance. Part I provides a brief overview of choice-of-law doctrine in the United States. Part II documents the mess claims. Part III then shows how the mess claims, if correct, would be bad news for global governance. Choice-of-law doctrine can increase or decrease global economic welfare, enhance or undermine transnational rule of law, and facilitate or hinder transnational bargaining. The extent of these effects, and whether they are beneficial or harmful, depends largely on the degree to which choice-of-law doctrine actually influences judges’ international choice-of-law decisions and the extent to which those decisions are biased and unpredictable. The mess claims thus imply that if choice of law has any systematic effects on global governance they are likely to be harmful. Part IV uses statistical analysis of an original dataset of published international choice-of-law decisions by U.S. district courts in tort cases to present evidence that choice-of-law doctrine indeed influences these decisions; that these decisions are not biased in favor of domestic law, domestic litigants, or plaintiffs; and that they are actually quite predictable. The mess claims, it turns out, may be myths—at least in transnational tort cases. Part V explores the broader implications of my analysis. In particular, it explains why these findings are encouraging from a global-governance perspective and why they might plausibly extend to unpublished international choice-of-law decisions and domestic choice-of-law decisions. Overall, the Article’s findings suggest that the conventional wisdom exaggerates what is wrong with choice of law and implicitly underestimates its contributions to global governance.
This paper tests three separate hypotheses about inherent biases in the application of modern choice of law rules: (1) Brilmayer's 1980 hypothesis that such rules camouflage 'pro-resident, pro-forum-law, pro-recovery' biases, (2) Borchers's 1992 hypothesis that courts do not consistently apply the principles of the choice of law rule they claim to be applying, and (3) an economic hypothesis, presented in the paper, that only a 'pro-forum-law' bias is unambiguously consistent with economic efficiency, simply because it conserves the resources of the court and bar in the forum state. I find relatively strong support for the 'pro-recovery' bias of courts, weaker support for 'pro-forum-law' bias, and reject the 'pro-resident' bias. If anything, states retaining the rigid choice of law rules are more likely to favor their residents. Moreover, I reject Borchers's claim that courts do not take the modern approaches seriously. Indeed, in general, they follow Borchers's own predictions.
As crime becomes an international rather than a domestic concern, law-enforcement officials across the globe join to pursue, prosecute, and punish criminals. Out of this phenomenon emerges the field of international criminal law. Among the principal challenges for this field is how to protect the rights of the accused individual against the combined power of the international community. In this Article, Professor Diane Marie Amann confronts that question with regard to one right, examining whether the Fifth Amendment privilege against self-incrimination ought to protect a witness who fears only prosecution in a foreign country from having to testify in a U.S. proceeding. It is a question that has divided the U.S. courts of appeals, and one on which the U.S. Supreme Court heard argument in April, 1998. This Article looks at the issue from an international criminal law perspective. First, it reviews gr owing international recognition of a right against self-incrimination. Second, it demonstrates the rapid increase in international law-enforcement cooperation. Finally, it explores the historical purposes underlying the Fifth Amendment to the U.S. Constitution. The Article concludes that U.S. courts must honor the privilege against self-incrimination not only in the domestic, but also in the international, context.
The choice of law in diversity actions in the federal courts is governed by the famous case of Erie R. R. v. Tompkins and its progeny. In this Article, John Hart Ely reexamines the Erie precedents and argues that the widely-accepted view of "Erie" improperly treats as a single command the three distinct standards of the Constitution, the Rules of Decision Act, and the Rules Enabling Act. In addition, Professor Ely presents a new interpretation of the Enabling Act, which attempts to give meaning to that Act's apparent command that Federal Rules be subordinated to state rules based on any substantive policy.
Judges must often decide what law governs issues in their cases - state law or federal common law. Scholars have traditionally divided this inquiry into two stages, asking first whether the judge has power to apply any law other than state law, and then, if such power exists, whether the judge should apply state law anyway. In this Article, Professor Field challenges this two-prong inquiry and the conception of "state law" that it implies. She argues that the power to create federal common law is (and should be) much broader than is generally assumed, and that despite Erie Railroad v. Tompkins, state law very rarely "operates of its own force." Professor Field concludes that even though there is broad power to create federal common law, judges have exercised their discretion in a way that allows state law and federal common law to operate in a complementary fashion.
In the February issue of this Review, John Hart Ely reexamined "The Irrepressible Myth of Erie," arguing that the Erie doctrine in fact consists of three independent commands: the Constitution, the Rules of Decision Act, and the Rules Enabling Act. In this Comment, Professor Mishkin argues that Ely neglects to consider the distinctive constitutional limits on judicial power. These limits, he suggests, constitute the essential unity underlying Erie, and ultimately reinforce the major lines of Ely's analysis.
Commentators often assume that with the demise of Swift v. Tyson, the American legal system has abandoned the very concept of "general" law. But while that concept no longer informs the relationship between state and fed-eral courts, reports of its death are otherwise exaggerated. Indeed, the struc-ture of our federal system effectively compels courts to continue drawing cer-tain rules of decision from general American jurisprudence rather than from the local law of any individual state. This Article has three basic aims. First, it demonstrates the continuing relevance of rules of general law—rules whose content is not dictated entirely by any single decisionmaker (state or federal), but instead emerges from pat-terns followed in many different jurisdictions. Second, it uses a variety of seemingly unrelated circuit splits to show that courts lack a solid framework for analyzing the relationship between written federal law and background rules of general law. Third, it begins to develop such a framework. In the course of doing so, the Article sheds new light on a recurring problem in statutory interpretation: How can courts best identify what Frank Easter-brook calls the "domain" of a federal statute? The Article also establishes that when courts articulate rules of "federal common law" to fill vacuums created by written federal law, they assert less creative power than modern commentators typically suggest.
Legal scholars from many disciplines — including law and economics, commercial law, and cyber law — have for decades clung to the story of the so-called law merchant as unassailable proof that private ordering can work. According to this story, medieval merchants created a perfect private legal system out of commercial customs. As this customary law was uniformly and universally adopted across Europe, it facilitated international trade. The law merchant myth is false on many levels, but this Article takes aim at two of its fundamental principles: that uniform and universal customary merchant law could have existed and that merchants needed it to exist. The Article argues that the most widespread aspects of commercial law arose from contract and statute rather than custom. What custom the merchants applied often did not become uniform and universal because custom usually could not be transplanted and remain the same from place to place. Yet, the use of local custom did not hamper international trade because intermediaries such as brokers ensured that medieval merchants had no need for a transnational law.
Revisionist scholars have recently challenged the hornbook rule that United States federal courts shall determine questions of customary international law as federal law. The revisionists claim that the traditional rule violates constitutional history and doctrine, and offends fundamental principles of separation of powers, federalism, and democracy. Professor Koh rebuts the revisionist challenge, applying each of the revisionists' own stated criteria. He demonstrates that the lawful and sensible practice of treating international law as federal law should be left undisturbed by both the political and judicial branches.
The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?
This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional "backdrops": rules of law that aren't derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as "defeaters" for the Constitution's defeasible language. In each case, the text requires that the rules be given force, even though it doesn't supply their content.
Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.
In Swift v. Tyson, the Supreme Court held that section 34 of the Judiciary Act of 1789 did not require a federal court in a commercial case to apply the rule followed by the courts of the state in which it sat. Instead, a federal court was free in such a case to follow the general law merchant. Legal historians have judged this holding a radical departure from earlier understandings of section 34. In this Article, Professor Fletcher demonstrates that the holding in Swift was largely a restatement of settled law. In the early nineteenth century, section 34 was regarded as the partial embodiment of the general principle of lex loci, which required courts to follow local law in cases where it applied. Section 34 and the lex loci principle were never thought to prevent a federal court from following the general common law in cases where it applied. Professor Fletcher uses as his example the law of marine insurance from about 1800 to 1820. During those years, state and federal courts succeeded in creating a stable, uniform system of common law that the federal courts applied without any hint that section 34 might require otherwise. The analysis of marine insurance cases suggests that we revise our historical judgment of Swift: these cases show that, long before Swift, there was a broad consensus that it was proper for federal courts sitting in diversity to apply the general common law in adjudicating commercial disputes.
In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law--treaties--as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." But the federal Constitution does not expressly address the status of the other principal form of international law--customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law.
This article offers a critique of the intermediate positions and, in the process, explicates and defends the modern position. Critics of the modern position often describe it as the claim that customary international law has the force of federal law always and for all purposes. But this uncompromising conception of the modern position is a phantom. Adherents of the modern position have always accepted that not all of customary international law binds foreign states or the federal Executive as a matter of U.S. domestic law. The heart of the modern position is that customary international law binds State actors and thus preempts State law applicable to State officials and private parties. The basic case for the modern position relies on an inference from the constitutional structure very similar to the one advanced by Bellia and Clark: Violations of customary international law risk retaliation against the nation as a whole. Permitting States to violate it allows States to externalize the costs of such violations, thus likely producing excessive violations.
Part I explicates and offers a preliminary defense of the modern position. It sets forth the affirmative case for the modern position based on constitutional structure, original intent, and pre- and post- Erie doctrine, responding to arguments put forward in the initial wave of revisionist scholarship, but deferring to part II responses to criticisms raised by scholars advancing intermediate positions. Part I shows that the basic structural case for the modern position was well understood by the Founders. Viewed in the light most favorable to the revisionist view, the evidence of original intent and the pre-Erie cases reflect two contending positions. The first is that the Constitution itself preempts State conduct that violates the state-to-state portion of the law of nations. The other is that customary international law had the status of general common law. Before Erie, the general common law was understood as different from either federal or State law, but was closer in operation to modern-day federal law than to modern-day State law. No one claimed that customary international law had a status comparable to modern-day State law.
Part II examines the intermediate positions and concludes that all but that of Bellia and Clark suffer from fundamental flaws. Ramsey's concept of "nonpreemptive federal law" is another name for State law. Thus, Ramsey's approach would replicate one of the problems that most concerned the Founders--the lack of federal judicial power to prevent or remedy violations of customary international law by the States. Young's proposal to employ choice-of-law rules to determine the applicability of customary international law satisfies Erie's requirement that all law applied in this country's courts be either State or federal, but only because choice-of-law rules are themselves creatures of either State or federal law. To the extent that Young would relegate the applicability of customary international law to State choice-of-law rules, his proposal would present severe difficulties stemming from the indeterminacy and inappositeness of such rules, and, like Ramsey's approach, would reproduce the problem that most concerned the Founders. Young's approach would alleviate these problems by allowing for the use of federal choice-of-law rules in some contexts, but he emphasizes that such rules would be applicable very rarely. Aleinikoff's approach would violate the one principle that all agree Erie establishes: that the substantive law applied in the State and federal courts must be the same. The intermediate position of Bradley, Goldsmith, and Moore is problematic because it would place inapposite limits on the judiciary's ability to enforce customary international law as federal law.
The intermediate approach proposed by Bellia and Clark is thoroughly convincing, but it is not really intermediate. Their structural argument for according preemptive force to some customary international law is basically the same as the strongest argument for the modem position. The flaw in their argument is that they do not take it far enough. Their structural argument actually provides substantial support for most of the modern position.
Part III reconsiders the modem position in the light of the revisionists' argument that the customary international law of today differs in important respects from the state-to-state branch of the law of nations as known to the Founders and as it existed before Erie. The revisionists' concerns about the indeterminacy of customary international law and the loosening of the requirements for recognizing such law have some validity and relevance, but these concerns can be adequately addressed by restricting the range of customary norms having preemptive force to those that satisfy a heightened standard of clarity and acceptance. The revisionists' concerns about the new subjects addressed by customary international law--in particular, the fact that such law now addresses how a nation treats its own citizens-does not warrant any additional restriction.
The final part of the article addresses a seldom-analyzed aspect of the revisionist position--the claim that norms of customary international law that lack the force of preemptive federal law may be given the force of State law through incorporation by State legislatures or courts. The author argues that, for straightforward reasons, the States lack the power to make norms of customary international law applicable to foreign states or officials or federal officials. A State's incorporation of such norms against its own officials or against private parties would pose a less obvious structural problem: because customary international law evolves through the accumulation of state practice and opinio juris, State court decisions regarding the content of such law could, in combination with the acts of other States and foreign states, eventually result in the crystallization of norms of customary international law that the federal government does not support, or the erosion of norms that the federal government does support. State court decisions regarding the content of customary international law thus interfere with the federal executive branch's recognized power to speak for the United States at the international plane regarding the content of such law. This structural problem can be addressed either by denying the States the power to incorporate norms of customary international law or by recognizing the Supreme Court's jurisdiction to review decisions of the State courts regarding the content of customary international law even when such law is relevant to the case only because it has been incorporated as State law. The author concludes that the latter solution is preferable and that such review would be consistent with Article III.
This article criticizes the "cardinal rule" of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings that do not fairly reflect the legislative bargains struck in Congress. The article continues by arguing that the avoidance canon also impinges on the role of the Executive by disregarding its best judgment as to statutory meaning, arrived in the course of discharging the constitutional function of executing the law, because that judgment might be unconstitutional. Of course, if a statute passed by Congress, or a statutory interpretation proffered by the Executive, is actually - as opposed to possibly - unconstitutional, a court should not hesitate to say so in the course of deciding a case. On the whole, however, the article concludes that the separation of powers would be better served by the Supreme Court's recognizing that there is as much danger of judicial usurpation from avoiding constitutional questions as deciding them.
This Article advances a general theory of federalism, insofar as it concerns the allocation of lawmaking power in the United States. The Article argues that Justice Brandeis's opinion in the famous case of Erie v. Tompkins (Supreme Court 1938) was drawn too narrowly for the needs of American federalism. It argues that critics of judge-made federal law misunderstand those needs and would subvert our federalism. The proposed general theory builds on Justice Brandeis's insights in Erie. But, unlike Erie, which applies only to state law, only to case law, and only to federal courts, the proposed general theory, based on concepts of due process and American legal positivism, applies to statutes as well as case law, state law as well as federal law, and in state courts as well as federal courts. The Article further argues that the proposed general theory has strong underpinnings in the Supreme Court's existing jurisprudence, and in fact accurately and comprehensively describes, as we know it, the dual-law, dual-court federal system.
The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. A common premise of such theories - that courts make federal common law for the kinds of forward-looking policy reasons that would move Congress to enact a statute - largely accounts for the inadequacy. The Article proceeds to provide an account of the making of federal common law by state courts that considers historical practice, the constitutional structure, and certain normative claims about the way in which courts can and ought to make law. It concludes that state courts, when it is necessary to make federal common law in order to enforce existing law, are justified in doing so not as a deputy legislature, but as the result of attempting to best discern and apply existing principles of federal law. Finally, the Article identifies implications of this analysis for the operation of federal common law in federal courts.
Legal change is a fact of life. The need to deal with legal change has spawned a number of complicated bodies of doctrine. Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s “law of legal change.” The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the federal courts of appeals that addressed the question upheld the federal guidelines during this transitional interval. Beneath the surface, however, the various courts upholding the guidelines managed cases very differently, particularly when it came to questions of timing. As a result, some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts. Although that episode is unusual in terms of the size and salience of the case-management problem, the same general phenomena routinely manifest themselves on a smaller scale. Having described what courts actually do, I then suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods. Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.
This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a similar prohibition, controlled exclusively. In a 5-4 decision, the Court applied its “familiar framework,” first articulated in Hanna v. Plumer, to find that the language of Rule 23 was “unambiguous,” that the Rule addressed the same questions as the state law, that it satisfied the standards of validity contained in the Rules Enabling Act (REA) as a “rule of ... procedure,” and that any incidental effects on the outcome of the litigation or encouragement of forum shopping were irrelevant.In this Article, I argue that the Court got it wrong, and that application of the learning from horizontal analysis would have led to a sounder result. Choice of law jurisprudence seeks to avoid unnecessary conflicts, in part by giving the law of one or the other jurisdiction a more limited reading. Justice Ginsburg’s dissent in Shady Grove adopted that approach, quoting from the title of an article by California Supreme Court Chief Justice Roger Traynor, to ask “Is this Conflict Really Necessary?” By contrast, although the majority cited a canon of construction which would have recognized and deferred to the important goals and interests of New York, it chose to give Rule 23 an unnecessarily broad reading. After explaining why the dissent’s analysis was preferable, I then discuss in detail the majority’s conclusion that the Rule passed muster under the REA, again arguing that horizontal choice of law jurisprudence would have been instructive in defining and distinguishing “substance” and “procedure.”
Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons as proxies for congressional intent, most recognize substantive canons as advancing policies entirely independent of the intent expressed in either the text or purpose of the particular statute at issue. The courts’ adoption of substantive canons poses no problem of authority for dynamic statutory interpreters, who understand courts to be the cooperative partners of Congress and treat the creation of norms as part of the courts’ essential role. It poses a significant problem of authority, however, for textualists and purposivists, both of whom understand courts to be the faithful agents of Congress. To the extent that a court applying a substantive canon uses a judicial policy choice rather than the legislative will as its interpretive lodestar, it necessarily acts as something other than a faithful agent in interpreting the statute. Application of substantive canons, therefore, appears directly opposed to the basic premise from which both of these theories proceed. Those who treat federal courts as faithful agents occasionally note this tension. Nonetheless, they continue to apply substantive canons, and no serious study has been done regarding the question whether substantive canons can be reconciled with those theories of statutory interpretation animated by a strong commitment to legislative supremacy. This paper undertakes such a study, tracing the history of the federal courts’ adoption of substantive canons and examining whether the exercise of this power is consistent with the constitutional structure.
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation. This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the enclave theory advanced in the context of substantive common law: the constitutional structure preempts the state's ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III's grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.
Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding this major problem ubiquitously encountered in our system: every question of law posed to every actor in a system of federalism such as ours is preceded by the choice-of-law problem of whether the legal question is a matter of state or federal law. This article therefore tries to unearth the doctrine, developing a theory and methodology of reverse-Erie. This doctrine turns out to provide that federal law - be it constitutional, statutory, or common law - will apply in state court pursuant to the Supremacy Clause whenever that federal law preempts state law or, as less frequently acknowledged, prevails by an Erie-like judicial balancing in situations where Constitution and Congress have not chosen. Indeed, it interlocks with and ultimately merges into that megadoctrine also called Erie, which treats the system's overall relationship between state and federal law. Then, this article tries to explain the overlooked significance of this subject. After the integration of reverse-Erie, Erie comes to form a logical pattern, in which not only the state and federal courts but also all the other institutional and private actors can balance state and federal interests to shape or perceive the optimal relationship of state and federal law in our governmental and legal life. Nevertheless, reverse-Erie has experienced only neglect apparently because it falls between the curricular stools of civil procedure, constitutional law, and federal courts and because scholars tend to come at the subject from doctrinal jumping-off points other than Erie itself.
This article addresses the problem that federal courts face when they are asked to adjudicate cases presenting novel or unsettled questions of state law. The article suggests that the Supreme Court's decision in Erie Railroad Co. v. Tompkins rests on constitutional principles of judicial federalism, and was facilitated by the Court's application of legal positivism to state judge-made law. The article goes on to evaluate several competing methods for ascertaining state law, including prediction, abstention, the static approach, and certification. The article concludes that certification best implements the principles of judicial federalism underlying Erie, and thus counsels federal courts to employ a presumption in favor of certification.
Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question — even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation “law,” individual judicial philosophy, or something in between?This Article argues that many federal courts are getting the Erie question wrong — or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less “lawlike” than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as “law” and does not give them precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes — a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions.
This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers are "the Land" referenced in the Supremacy Clause, the "United States," "States," "Territory," "Property," the District of Columbia, federal enclaves, vicinage "districts," the "high Seas," "admiralty and maritime Jurisdiction," Indian lands, national airspace, and underground resource deposits. The Article shows that many discrete problems on which scholars have focused - such as the rights of U.S. military detainees abroad, the role of federal law on Indian reservations, and the extraterritorial reach of state law - are manifestations of a broader phenomenon that exists because of indeterminacy in how the Constitution allocates power over different kinds of spaces. Considering the many distinct kinds of constitutionally defined and constitutionally overlooked spaces together highlights this indeterminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny. The Article makes four basic points on which future scholarship can build. First, although the Constitution creates a typology of spaces that relies on formal categories, the categories often have little utility in resolving specific questions. The text’s description of the physical contours of spaces and the legal significance of their borders is too imprecise to permit a jurisprudence of labels that converts lines on a map into "bright line" rules of decision. Determining where in physical space a problem arises is therefore a necessary but insufficient prerequisite to determining which government entities can address the problem and how they may respond. Second, constitutionally defined places routinely overlap, such that a point in physical space can map onto several points in constitutional space. Drawing conclusions about how the Constitution regulates particular spaces in particular contexts therefore requires developing rules for allocating concurrent authority and resolving competing claims. Third, even when spaces do not physically overlap, events in one space routinely have consequences in others, residents of a space routinely act in others, and agents of an entity that controls a particular space often operate in other spaces. These spillovers raise questions about when entities (such as states, the United States, and tribes) can regulate beyond borders that would normally cabin their jurisdiction. The parameters of a constitutionally defined place are thus not necessarily coextensive with the reach of an entity governing that place. Finally, the same questions tend to recur in multiple spatial contexts. For example, who decides the boundary of a space and by what standards, when can federal courts create common law governing a space, and when does the text’s explicit enumeration of a space’s attributes imply by negative implication the absence of other attributes? Exposing how these questions arise in multiple contexts reveals subtle dimensions of problems that can go unnoticed when viewed in isolation. The pervasive and overlooked "where" question in constitutional law therefore merits systemic scrutiny.
This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their shared authority. Constitutional law currently addresses these limits in a piecemeal fashion through doctrines regulating such diverse subjects as personal jurisdiction, restraints on interstate commerce, choice of law, federal subject-matter jurisdiction, interstate compacts, federal common law, tax apportionment, interjurisdictional preclusion, and discrimination based on state citizenship. This Article moves beyond the piecemeal approach by identifying facets of horizontal federalism that transcend doctrinal categories. Considering these common features without the distraction of historically contingent doctrinal labels can help reconfigure jurisprudence that is often unprincipled, unsatisfying, and unstable. The Article proceeds in four steps. First, it defines horizontal federalism, explains how horizontal and vertical federalism overlap, and explores structural features of the Constitution that complicate efforts to define limits on state authority. Second, it groups seemingly unrelated examples of state action into eight categories. This typology highlights thematic connections between forms of state action that prevailing doctrine often treats separately. Third, the Article analyzes the Constitution holistically to identify the clauses that regulate horizontal federalism and consider how these fragments fit together to resolve, deter, or mitigate problems arising from the categories of state action noted above. This approach identifies five methods that the Constitution uses to regulate interstate activity. Finally, the Article develops a model for analyzing jurisprudence implementing the Constitution's methods for coping with horizontal federalism. This model reveals that horizontal federalism doctrines rely on a varying combination of four concepts: capacity (the scope of a state's sovereign authority), constraint (rights or immunities that limit state power), centralization (express or implied federal preemption or authorization of state action), and comity (the need for states to respect each other even when capacity exists free from constraint or central control). Identifying these concepts exposes at least three sources of incoherence or instability within horizontal federalism jurisprudence. First, individual judicial decisions are often imprecise about which concept controls, leading to a lack of fit between reasoning and outcomes. Second, the role of the four concepts can vacillate within a line of precedent over time, leading to confusion about a doctrine's rationale and proper application. Finally, distinct lines of precedent can deploy the four concepts differently despite the lack of meaningful distinctions between the doctrines' underlying purposes or functions. Parsing and critiquing capacity, constraint, centralization, and comity arguments can therefore affect the implementation, justification, and coordination of horizontal federalism doctrines. The model thus provides a foundation for future scholarship reevaluating vast swaths of constantly evolving law.
The constitutional rationale of Erie Railroad Co. v. Tompkins has remained elusive for almost seventy years. Three decades ago, Paul Mishkin argued in a brief but influential article that Erie rests on "constitutional principles which restrain the power of the federal courts to intrude upon the states' determination of substantive policy in areas which the Constitution and Congress have left to state competence." Professor Mishkin wrote his article in response to John Hart Ely's insightful analysis of Erie published earlier the same year. Mishkin understood Erie as imposing a constitutional restraint on the federal courts, but read Ely as treating "the Constitution as relevant only in terms of Congress' power to displace state substantive law" and not as an independent restriction on "the power of the federal courts to do so." Mishkin grounded his contrary understanding "on the structure established by the Constitution whereby the states, and their interests as such, are represented in the Congress but not in the federal courts." Invoking the separation of powers, Mishkin concluded that "the Constitution bears not only on congressional power but also imposes a distinctive, independently significant limit on the authority of the federal courts to displace state law." Professor Mishkin's article remains a key reference in the field because scholars continue to debate the precise contours - and even the existence - of the constitutional basis for the Supreme Court's decision in Erie. Mishkin's unique contribution was to link federalism with the constitutional separation of powers. This account of Erie's constitutional rationale is insightful and, in my view, correct. It may be fortified, however, by an additional structural argument that ties Erie directly to the Supremacy Clause. That Clause recognizes only the "Constitution," "Laws," and "Treaties" as "the supreme Law of the Land," and thus incorporates three distinct sets of federal lawmaking procedures found elsewhere in the Constitution. By design, all of these procedures safeguard federalism by requiring the participation and assent of the states or their representatives in the Senate. Accordingly, the constitutional structure strongly suggests that the Supremacy Clause establishes the exclusive basis for disregarding state law, and that more expansive judicial doctrines like Swift are unconstitutional. Reliance on these features of the constitutional structure is implicit in the Erie opinion and provides formal substantiation of Professor Mishkin's sound intuitions about Erie, the separation of powers, and federalism.
This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and should be, quite different from constitutional interpretation by courts. In so doing, I combine insights from political scientists about the ways Congress operates with insights from constitutionalists who fear open-ended interpretation.
According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state’s supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state’s supreme court would. Horizontal Erie is such a plausible idea, one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister state law. And state courts have taken advantage of this freedom, by routinely presuming that the law of sister states is the same as their own – often in the face of substantial evidence that the sister state’s supreme court would decide differently. This presumption of similarity to forum law is particularly significant in nationwide class actions. A class will be certified, despite the fact that many states’ laws apply to the plaintiffs’ actions, on the ground that the defendant has failed to provide enough evidence to overcome the presumption that sister states’ laws are the same as the forum’s. I argue that this vestige of Swift v. Tyson needs to end.Applying horizontal Erie to state courts is also essential to preserving federal courts’ obligations under vertical Erie. If New York state courts presume that Pennsylvania law is the same as their own, while federal courts in New York decide as the Pennsylvania Supreme Court would, the result will be the forum shopping and inequitable administration of the laws forbidden under Erie’s progeny. As a result, federal courts have often held that they too must employ the presumption of similarity to forum state law, despite its conflict with their obligations under vertical Erie. Applying horizontal Erie to state courts solves this puzzle.
Although Erie Railroad v. Tompkins put an end to the "general federal common law," a form of general common law lives on in admiralty. The interaction of that law with state regulatory authority in maritime cases has given rise to one of the thorniest questions in federal courts law -- the problem of maritime preemption. Because admiralty law remains largely a "brooding omnipresence over the sea," maritime preemption affords a unique opportunity to explore the implications of both pre- and post-Erie approaches to judge-made law for our modern system of federalism. In this article, Professor Young proposes that the present approach to maritime preemption should be abandoned. That approach--under which the general maritime law made by federal courts almost always preempts state law--has never crystallized into a coherent or workable rule. And any broad rule of maritime preemption is inconsistent not only with Erie, but also with the founding generation's assumptions about maritime law and with modern preemption doctrine. Professor Young concludes that admiralty law should have no preemptive effect, and that other mechanisms can adequately protect the legitimate federal interests that exist in maritime cases.
In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation. In this Article, we question the modern position's historical validity, and show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. We then question contemporary arguments for the modern position and show how these arguments depart form basic understandings about American representative democracy, federal common law, separation of powers, and federalism. We conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.
This Essay examines the pressure placed upon choice of law doctrine by the newly enacted Class Action Fairness Act ("CAFA"). The core argument is that current choice of law doctrine, which assumes fidelity to the forum state choice of law rules as its basic premise, corresponds poorly to the national scope of economic activity in cases brought into federal court under CAFA. The Essay argues that there needs to be some conformity between the national scale of contemporary economic activity and the state-by-state presumption of inherited conflict of laws doctrine in order to provide some sensible legal oversight of national market conduct. Because of the multiplicity of potential forums for litigation of national market activity, the inherited doctrines of Klaxon Co. v. Stentor Electric Manufacturing Co. and Erie Railroad Co. v. Tompkins do little to provide settled expectations about the substantive laws governing broad-scale economic conduct.The Essay offers an approach that should guide choice of law rules in the context of national market cases based on the need to facilitate common legal oversight of undifferentiated national market activity. The claim here is that conduct that arises from mass-produced goods entering the stream of commerce with no preset purchaser or destination should be treated as just that: goods in the national market. In the absence of national choice of law rules, this Essay suggests that courts should, as a default rule, apply the laws of the home state of the defendant to all standardized claims, regardless of the situs of the final injury. The upshot of this approach is to suggest a path for future development of national market cases that have been brought into the federal courts as a result of CAFA.