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Sunday, January 27, 2013

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.

2)      Erie and its progeny tell us that a federal court in New York entertaining an unsettled issue of Pennsylvania law must predict how the Pennsylvania Supreme Court would decide. But under the twin aims, because a New York state court deciding an unsettled question of Pennsylvania law would ignore the Pennsylvania Supreme Court’s likely decision and presume that Pennsylvania law is like New York law, a federal court in New York should presume that Pennsylvania law is like New York law too.

3)      Abbe Gluck has suggested that it follows from Erie that a federal court in New York interpreting a Pennsylvania statute should use Pennsylvania’s rules of statutory interpretation. But under the twin aims, if a New York state court interpreting a Pennsylvania statute would use New York’s method of statutory interpretation, a federal court in New York should use New York's method too.

4)      Kim Roosevelt has argued that it follows from Erie that a federal court in New York interpreting Pennsylvania law should be bound by the choice-of-law decisions of the Pennsylvania Supreme Court. But under the twin aims, because a New York state court interpreting Pennsylvania law would use New York’s choice-of-law rules, a federal court in New York should use New York's choice-of-law rules too.

5)      In Byrd, Justice Brennan argued that a federal court in New York entertaining a Pennsylvania cause of action is obligated under Erie to respect Pennsylvania rules bound up with the Pennsylvania action. But under the twin aims if a New York state court entertaining a Pennsylvania action would ignore such Pennsylvania rules, and apply New York law instead, so must a federal court in New York. 

The easiest way to solve these problems is to argue that state courts entertaining actions under sister state law have the same obligations under the Full Faith and Credit Clause that federal courts entertaining state law actions have under ErieSo I have argued. But even if I'm wrong, some account of state courts' Full Faith and Credit obligations when entertaining sister state actions is needed to make sense of the scope of conflicts between Erie and the twin aims of Erie. What might that account look like? 

(Parallel posted on Michael Green's Civ Pro Blog.)

Posted by Michael Steven Green on January 27, 2013 at 03:34 PM in Civil Procedure | Permalink

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