Choice of law: Erie

Question 1

Generally

Answer 1

FQ—federal substantive and procedural law controls, as well as federal common law
DJ—state substantive law and applicable federal procedural law

Question 2

Substance or procedure

Answer 2

Determination is unclear

1. Valid federal statute on point when state and federal laws conflict
   • Apply federal law
   • Before applying a Federal Rule (rather than a federal statute), court must determine the Rule is valid under the Rules Enabling Act: does the Federal Rule abridge, enlarge, or modify any substantive right?
   o If no, then apply the Federal Rule
   o If yes, then apply the Federal Rule if it only incidentally affects a litigant’s substantive rights
2. No federal rule on point—apply state law if failure to do so would lead to different outcomes in state and federal court
3. Substantive law—elements of claim or defense, statute of limitations (S/L) and tolling provisions, and burden of proof
4. Procedural law—judge/jury allocation, assessment of attorney’s fees, equitable/legal determination

Question 3

Federal common law

Answer 3

1. In general
   • Created when there is no applicable federal statute or constitutional provision
   • There is no general federal common law; general areas that federal common law is applicable to will be limited
2. FQ—apply federal common law in the following instances:
   • Admiralty cases
   • When the U.S. is a party to the case
   • Interstate disputes
   • Cases implicating relations with foreign countries
   • Cases in which the government acts in a proprietary role (e.g. enters into contracts, issues commercial paper, and oversees regulatory programs), and
   • When Congress has left a gap in a statutory scheme
3. DJ—when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law
4. State court cases—if state JX is concurrent with FQ JX and federal common law would have applied in federal court, then it will also apply in state court

Question 4

State conflict of law rules

Answer 4

Federal court must apply state’s conflict-of-law rules

1. DJ—district court bound by conflict-of-laws rules of state in which the district court is located, but only to extent that state’s rules are valid under Full Faith and Credit and Due Process Clause
2. Procedural or substantive law—states apply their own procedural laws and sometimes apply the substantive law of a foreign JX