Saturday, January 26, 2013
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?
One might wonder how the distinction between Byrd and the twin aims is possible in a reverse-Erie context. After all, the Supreme Court is authoritative concerning both issues. In our diversity case, in contrast, the Pennsylvania Supreme Court was the authority concerning whether a rule was bound up with the Pennsylvania cause of action, while the United States Supreme Court was authoritative on the role of the twin aims.
But I think there is an important distinction between the Supreme Court saying that a federal rule is bound up with a federal cause of action because the failure of a state court to use the rule would frustrate the substantive regulatory policies of the federal action, and the Supreme Court demanding that a state court use the federal rule to serve federal jurisdictional policies, such as avoiding forum shopping between federal and state court. For example, the Supreme Court would want the bound-up rules to follow the federal cause of action into the courts of other nations. It would not care whether foreign courts used rules of the second type.
I’m pretty confident that a majority of the Supreme Court thinks that something like the twin aims apply in a reverse-Erie context, although I don’t think they would put it that way. Others agree. An example is Haywood v. Drown. Haywood concerned a New York statute according to which any civil action for damages against prison personnel for torts committed within the scope of their employment had to be brought in the New York Court of Claims. Because this court could not entertain federal civil rights suits, the effect of the statute would be to remove state court jurisdiction for federal civil rights suits brought against prison personnel.
The New York statute does not frustrate the substantive purposes of federal civil rights actions, for the only result of the statute is that they get litigated in federal or sister state courts rather than New York state courts. But it does violate the twin aims. In holding the statute preempted, I think the majority of the Court was relying implicitly on the twin aims – and an analogy between diversity and reverse-Erie cases. The upshot of Thomas’s dissent, in contrast, was a rejection of the applicability of the twin aims in a reverse–Erie context. So who’s right?
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