The Erie Doctrine: A Flowchart

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals May 2019 The Erie Doctrine: A Flowchart Michael S. Green Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview Part of the Civil Procedure Commons Recommended Citation Green, Michael S. (2019) "The Erie Doctrine: A Flowchart," Akron Law Review: Vol. 52 : Iss. 2 , Article 2. Available at: https://ideaexchange.uakron.edu/akronlawreview/vol52/iss2/2 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Green: <i>Erie</i> Doctrine Flowchart THE ERIE DOCTRINE: A FLOWCHART Michael S. Green* I. II. II: III. IV. Introduction ............................................................... 215 The Four Considerations in an Erie Problem ............ 216 A. Sovereignty Considerations ................................ 216 B. Borrowing Considerations .................................. 222 C. Countervailing Considerations............................ 225 D. Separation-of-Powers Considerations ................. 226 The Flowchart ............................................................ 228 Explanations .............................................................. 233 Conclusion ................................................................. 257 I. INTRODUCTION A flowchart belongs in a commercial outline. Why would any selfrespecting legal scholar write a symposium piece presenting one? Well, the Erie doctrine is different. First, it is very, very complicated. I have never seen an Erie flowchart in a commercial outline that did not have substantial errors or omissions. Academic treatment, for its part, tends to work in the weeds, without presenting the Erie doctrine in an organized and comprehensive way. What I offer below is, I think, the first correct and complete flowchart for Erie cases. Second, a properly formulated and sufficiently detailed flowchart, with accompanying explanations, can go a long way toward quieting academic worries that the Erie doctrine is fundamentally flawed. I hope to show that Erie problems are standard choice-of-law problems, and the way that the Supreme Court has told federal courts to deal with them is in keeping with that fact. Even the disagreements one sees on the Court are * Dudley W. Woodbridge Professor of Law, College of William and Mary. Many thanks to the participants in the University of Akron School of Law’s Conference on Erie at Eighty for helpful comments. SYMPOSIUM, ERIE AT EIGHTY: CHOICE OF LAW ACROSS THE DISCIPLINES Published by IdeaExchange@UAkron, 2019 1 Akron Law Review, Vol. 52 [2019], Iss. 2, Art. 2 216 AKRON LAW REVIEW [52:215 just what one would expect given the nature of the choice-of-law problems at issue. The Supreme Court’s Erie jurisprudence isn’t perfect, but it largely makes sense. The third reason an Erie flowchart is worthy of academic treatment is that it helps highlight unexplored problems. Despite countless articles on Erie, there is a surprisingly large number of issues that have not been discussed in much detail. Identifying them is part of what I will try to do here. I begin by describing what I believe are the four considerations that come into play in an Erie problem. I then present the flowchart, followed by a lengthy explanation of each step. II. THE FOUR CONSIDERATIONS IN AN ERIE PROBLEM First, some fundamentals. An Erie problem arises when a federal court facing an issue must choose between using a standard drawn from another sovereign’s law or using an independent federal standard. I believe there are four considerations that can come into play in the federal court’s choice. A. Sovereignty Considerations The first two considerations consist of reasons the federal court might have to use another sovereign’s standard. The first and most obvious of these is respect for the other sovereign’s lawmaking authority. Let us call these sovereignty considerations. Although the relevant sovereign is usually a state, it might be a foreign nation. Indeed, the place of foreign law in Erie problems is a big gap in the literature, which almost always speaks of Erie problems as if they exclusively involve the choice between federal and state legal standards. 1 An example of sovereignty considerations in action is Erie Railroad v. Tompkins itself. In Erie, the Supreme Court held, in part, that a federal district court in New York had to use Pennsylvania’s standard on the duty of care that a New York railroad has to a Pennsylvania trespasser in Pennsylvania, out of respect for Pennsylvania’s lawmaking authority. 2 Notice that if sovereignty considerations come into play, the other 1. An exception is Donald Earl Childress III, When Erie Goes International, 105 NW. U. L. REV. 1531 (2011). For a response, see Michael Steven Green, Erie’s International Effect, 107 NW. U. L. REV. 1485 (2013). Also unexplored is the role of the law of federal territories such as the District of Columbia or Guam, which derive their lawmaking power from the federal government. 2. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). https://ideaexchange.uakron.edu/akronlawreview/vol52/iss2/2 2 Green: <i>Erie</i> Doctrine Flowchart 2018] ERIE DOCTRINE FLOWCHART 217 sovereign must want the federal court to use its standard to decide the issue (in the sense that the appropriate authorities of the other sovereign would, if asked, say they want that result). Thus, to understand Erie as being about respect for Pennsylvania’s sovereignty, we must assume that the Pennsylvania Supreme Court would have said it wanted a federal court facing the facts in Erie to use Pennsylvania’s standard. If it wouldn’t have said that—if the standard was intended to bind only Pennsylvania state courts—there would have been no assertion of Pennsylvania regulatory authority the federal court in Erie could have failed to respect. Although the terms “substantive” and “procedural” have many different meanings, 3 a law can be called substantive if the sovereign that created it intends it to be used in other court systems and procedural if the sovereign intends it to be used only in its own courts. Unless otherwise noted, that is how I will use the terms here. Thus, one can say that sovereignty considerations are not implicated unless the other sovereign’s law is substantive in the relevant sense. One reason Erie problems are challenging is that it is so difficult to determine whether another sovereign’s law is substantive or procedural. Unless the question is certified to the Pennsylvania Supreme Court, no Pennsylvania st (...truncated)