So far, I have said nothing about the so-called “twin aims of the Erie rule” in Hanna v. Plumer – that is, the goal of uniformity with a forum state court, in order to avoid “forum shopping” and the “inequitable administration of the laws.” I’ve been concerned about the scope of federal courts’ obligation to respect state lawmaking power. I have not assumed that the state at issue is the forum. But it’s now time for questions about the twin aims.
My first is this: Why did Warren call them the twin aims of the Erie rule? Erie held that a federal court in New York could not come to its own conclusion about the common law prevailing in Pennsylvania. It had to follow the decisions of the Pennsylvania Supreme Court. The reason was respect for Pennsylvania’s lawmaking power, not because following the Pennsylvania Supreme Court was what a New York state court would do.
Indeed, at the time Erie was decided some state courts had their own version of Swift v. Tyson. When deciding a common law case in arising in a sister state, they would come to their own conclusion about the common law rule, without deference to the sister state supreme court. For a federal court in such a state, following the twin aims of Erie would mean rejecting Erie and adopting Swift. Indeed, because Georgia is apparently still committed to a Swiftian view of the common law, that is precisely what federal courts in Georgia do. In re Tri-State Crematory Litig., 215 F.R.D. 660, 677 (N.D. Ga. 2003). They choose the twin aims of Erie over Erie.
So, I ask again, why are they called the twin aims of Erie? Sure, Brandeis mentioned how Swift generated forum shopping in Black and White Taxicab. But that involved a federal court's interpretation of the law of the forum state. It was not a case where the difference between Erie and the twin aims of Erie is evident.
(Parallel posted on Prawfsblawg.)