I just found out that Alfred Hill, a professor of law at Columbia, died a few months ago. My initial exposure to Hill’s work on Erie was curious. In looking at current articles on the topic, I kept seeing citations to articles Hill wrote in the 1950s: State Procedural Law in Federal Nondiversity Litigation and The Erie Doctrine in Bankruptcy, both published in the Harvard Law Review, and a two-part article in the Northwestern University Law Review called The Erie Doctrine and the Constitution. Citation to half-century-old articles is very unusual in legal scholarship. When I took a look at them, I found out why they were so popular. They were masterful — written with a clarity and insight that made them still useful today. Indeed, I still often find that a Hill article is the only one that discusses a problem I am interested in. I then discovered that Hill, who I had assumed died decades before, was still alive. A number of times I considered emailing him to let him know how much I thought of his work. I never did and now, I’m sorry to hear, it is too late.
Conflict of Laws
Just posted a new paper on SSRN. I argue for the following limit on states' power to regulate the procedure of federal courts: Their power cannot be vertical. They cannot direct their law solely to federal courts within their borders. This may not seem that significant, but it is surprising how often law professors and federal judges have assumed that vertical power exists. They're wrong.
I've posted the grades for Conflicts. It was a good set of exams. In particular, there was no exam I could feel comfortable giving a B- or lower, so I jiggered the grades to avoid that and still stay (barely) within the mandatory curve range...
The following is an old exam for conflicts, to give my current students an idea of what my exams look like. I'll go over some of the answers in the review session.
James Stern's paper is out in the Virginia Law Review and is up on SSRN.
I thought I would say a bit more about my (partial) critique of Larry Kramer’s solution to the problem of unprovided-for cases, which I discussed in class. An unprovided-for case is one in which it looks as if neither state is interested in its law applying. An example is Neumeier. An Ontarioan, who was a guest in a New Yorker’s car, sues the New Yorker in New York state court for negligence in connection with an accident in Ontario. Ontario has a guest statute, which bars a guest from suing a host for negligence. New York doesn’t.
In his article defending Erie, Ernest Young questions my conclusion (in Erie’s Suppressed Premise) that Georgia is still committed to a Swiftian view of the common law. Since I spoke about Georgia’s Swiftian approach in class in Conflicts, this also is an opportunity say a bit more about the topic for my students.
My next two posts are on a massive and wide-ranging article by Ernest Young (brought to my attention in Larry Solum’s blog) in which he responds to my reading of Erie. In this post I wanted to discuss just how much Young and I agree on the deep structure of the constitutional argument in Erie (something that one might not recognize from reading Young’s article).
I’ve been working on sending out a paper this season and so have been a negligent blogger. But I wanted to (finally) respond to some of James’s comments. It is useful to distinguish between a non-situs state perspective and the perspective of the situs state. James is arguing that a non-situs state court should adopt a renvoi approach—that is, make the choice-of-law decision that a situs state court would. The puzzle is that precisely in the circumstances where the non-situs state court has a reason to adopt renvoi (that is, when its judgment purports to be in rem), it should dismiss for lack of jurisdiction. It is true that if it is set on making a judgment in rem, it should decide as a situs state court would. But it shouldn’t really be in the business of making such a judgment at all. On the other hand, if its judgment won’t interfere with the in rem quality of the property, who needs renvoi?
James Stern kindly responded to my musings. Since his comments are so thoughtful, I thought I'd give them their own post:
For my own part, I am inclined to think it’s is generally best to have a conflicts rule that seeks to validate wills (or their attempted revocation). But the real question here is who decides? Should the adjudicating court supply the conflicts rule it thinks best or should it apply the conflicts rules of the situs? The whole premise of conflict of laws is that the forum will sometimes supply someone else’s contrary view of the best way to resolve the case. So it’s not enough just to say, we want to uphold the will, etc. We also have to conclude that the decision is one that we should make and not someone else. As you know, I’m alluding here to the doctrine of renvoi.