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Wednesday, January 09, 2013

Erieblogging: Day Nine

Another un- or underexplored question about Erie Railroad Co. v. Tompkins (parallel posted on my own CivPro Blog).
Today's question: A federal court sitting in diversity or alienage jurisdiction is facing an issue of Australian common law. Does it have an Erie obligation to decide as the High Court of Australia would?

There is a reason to think that a federal court’s constitutional duties when interpreting state law are different from its duties when interpreting the law of a foreign nation. Assume, for example, that an issue of state law faced by a federal court is sufficiently unsettled that the parties could not have reasonably relied upon one interpretation rather than another. The federal court is still obligated to do its best to decide as the state supreme court would, even though whatever decision it comes to would not violate the due process rights of the parties. The reason is that the federal court’s constitutional obligations are not just to the parties. It has a duty to respect the state’s lawmaking power and that means deciding as the state supreme court would (assuming, of course, that the state supreme court wants such deference). 

On the other hand, from what I can tell a federal court has no constitutional obligation to respect the regulatory power of a foreign nation. Its constitutional duties concerning foreign law are solely to the parties themselves. And doesn't that mean that if the parties have no reasonable expectations, a federal court can, as a constititional matter, interpret foreign law any way it wants?

This is one of a whole slew of puzzles concerning Erie in an international context. For a recent argument that Klaxon should not apply when a federal court is choosing between state law and the law of a foriegn nation, see Trey Childress's recent article, When Erie Goes International. (Klaxon, you may recall, says that a federal court sitting in diversity should use the choice-of-law rules of the state where the federal court is located.) I'm skeptical, but I loved the article.

Posted by Michael S. Green on January 9, 2013 at 06:31 PM in Civil Procedure | Permalink


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Hi Scott - Actually, I haven't got to THAT puzzle at all yet. All the posts so far have ignored the (probably non-constitutional) duty that a federal court might have under the so-called twin aims of Erie to mimic a forum state court (or forum state supreme court). For example, in a case where a federal court in New York is interpreting Pennsylvania law, I've been concerned about the court's duties vis-à-vis the Pennsylvania Supreme Court, not the New York Court of Appeals.

You are absolutely right, however, that these Erie duties can be in conflict with the twin aims. For example, Erie might recommend that the federal court in New York predict what the Pennsylvania Supreme Court would say, while the twin aims would recommend presuming that Pennsylvania law is the same as New York law, because that is what a New York state court would do. We have the same concerns here: the twin aims might recommend that a federal court use the same method for interpreting Australian law that a forum state court would.

By the way, thanks for breaking my streak of seven no-comment posts...

Posted by: Michael Steven Greeen | Jan 10, 2013 3:37:51 AM

In line with your other posts, doesn't this depend entirely upon whether the highest state court in which the federal court sits would decide as the High Court of Australia would?

Posted by: Scott Dodson | Jan 9, 2013 11:21:19 PM

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