Michael Green's CivPro Blog

Erieblogging: The Final Day

Well, I said I was going to post an un- or underexplored question about Erie every day for the month, and that is what I did, as andy-kaufmanesque as the results may have been. People sometimes ask me how I can write so much on Erie (I’m at five articles and have a few more in the works). It may be myopia, but to me the topics of my papers are as different from one another as contract and tort. There isn’t really one Erie doctrine—“Erie” is a code word for a huge set of heterogeneous constitutional and subconstitutional problems that arise from the existence of federal courts (especially federal trial courts) within our federal legal system. That, at any rate, is what I’ve tried to show.

As for my final question, it is this: What can other federal legal systems with federal courts tell us about Erie? Australia, for example, has a federal legal system, federal courts, and even diversity jurisdiction. But things, I am told, look very different (and more Swiftian) down under.  

(Parallel posted on Prawfsblawg.)

Erieblogging: Day Thirty

My penultimate Erie question is about the District of Columbia. I’m not concerned here with the puzzle of how Congress can send a state law cause of action between a citizen of a state and a citizen of the District to federal court, given it is not a controversy between “citizens of different states" under Article III. 

My question is about the fact that "federal" courts (including the District Court for the District of the District of Columbia, the D.C. Circuit and the Supreme Court) defer to the "state" supreme court, the D.C. Court of Appeals, concerning D.C. law, as if Erie applied here.  But that's nonsense:  D.C. is a federal enclave and the "state" supreme court is itself a federal court. 

Erieblogging: Day Twenty-Nine

My Erie question for the day is still about relatively unguided Erie choices, that is, cases in which  a procedural matter faced by a federal court sitting in diversity (or supplemental jurisdiction - or bankruptcy? or CAFA? or statutory interpleader?) is not covered by federal enacted law (such as a federal statute or a Fed. R. Civ. P.). My question  is this: What is the grand unified theory?

Erieblogging: Day Twenty-Eight

Today’s Erie question is about “countervailing federal interests.” Assume that a procedural matter faced by a federal court sitting in diversity is not covered by federal enacted law (that is, a federal statute or a Fed. R. Civ. P). That puts us in “relatively unguided Erie” territory. Assume as well that the relevant state supreme court would not say that a state rule on the matter follows the state law cause of action upon which the plaintiff sues into federal court. That gets us out of Byrd’s “bound up” test. If so, whether the federal court should use a uniform federal common law rule or borrow the rule that would be used by a forum state court comes down to two sets of considerations – the twin aims of Erie (which argue for borrowing) and countervailing federal interests in favor of using a uniform federal common law rule.

My students usually have pretty good idea how to apply the twin aims (or at least the forum shopping part) and sometimes even have intuitions about whether a rule is bound up with the cause of action. What they have the most difficulty with is identifying countervailing federal interests. Consider whether a federal court can apply a uniform federal common law time limit to state law actions – maybe a flexible approach like laches (which was what was at issue in Guaranty Trust v. York). There would obviously be vertical forum shopping as a result. But why aren’t there countervailing federal interests in favor of the flexible federal rule? No one, to my knowledge, has a good theory about why not.

Erieblogging: Day Twenty-Seven

Today’s Erie question is about conflicts between Erie (understood as deference to a state supreme court concerning the content of the state’s law) and the twin aims of Erie (understood as a duty of procedural uniformity with forum state courts). Such conflicts arise in triangular cases – that is, cases in which a federal court is entertaining a cause of action under the law of a state other than the forum. Erie was itself such a case: it involved a federal court in New York entertaining a Pennsylvania action.

There are many examples of conflicts between Erie and the twin aims of Erie:

1)      Erie tells us that a federal court in Georgia interpreting Pennsylvania common law must respect the decisions of the Pennsylvania Supreme Court. But under the twin aims, because a Georgia state court interpreting Pennsylvania common law would adopt the Swiftian view that it can ignore the Pennsylvania Supreme Court’s decisions, a federal court in Georgia should be Swiftian too.

Erieblogging: Day Twenty-Six

Here's today’s Erie question (OK – it’s actually a reverse-Erie question). Let’s start with a diversity case. Assume a federal court in New York is entertaining a Pennsylvania cause of action. It has a duty under Erie and Byrd to respect the content of the Pennsylvania action (including rules bound up with that action). That duty is pegged to the likely decisions of the Pennsylvania Supreme Court. But it also has a duty under the twin aims to have procedural uniformity with a New York state court, a duty that doesn’t seem related to the New York Court of Appeals’s likely decision on the matter. My earlier posts were mostly on the former duty, while my more recent ones have been on the latter.

What about when a state court entertains a federal cause of action? Does the state court have a duty only to respect the content of the federal cause of action, analogous to a federal court’s duty under Byrd, or is there also a duty of procedural uniformity with federal courts. In short, do the twin aims apply in a reverse-Erie context?

Erieblogging: Day Twenty-Five

Two more questions about the twin aims of Erie. Do they apply when a federal court entertains a state law action after having gotten personal jurisdiction over a party pursuant to the “100-mile bulge” in Fed. R. Civ. P. 4(k)(1)(B) or through pendent personal jurisdiction?

Erieblogging: Day Twenty-Four

Recently, I’ve been looking at the twin aims of Erie outside of diversity cases. Today’s question: Do the twin aims apply when a federal court is entertaining statutory interpleader actions?

Erieblogging: Day Twenty-Three

The question for the day: Do the twin aims of Erie apply when a federal court entertains a state law action while sitting in bankruptcy? 

Erieblogging: Day Twenty-Two

One more puzzle about the twin aims of Erie - the goal in diversity cases of uniformity between federal procedural common law and the law used in a forum state court, to avoid “forum shopping” and the “inequitable administration of the laws" (whatever that means). Since we don't know where the twin aims come from, it's not easy figuring out whether they apply when a federal court is entertaining a state law action outside of diversity. My question for the day is: Do the twin aims apply when a federal court entertains state law actions under the Class Action Fairness Act (CAFA)?