Outline - Civil Procedure - V - Choice of Law

Civil Procedure (2005-2006)

V. CHOICE OF LAW

1. History
   1. Swift v. Tyson
      1. Claims created by federal codified law, federal law
      2. Claims created by state codified law, state law and state court interpretations
      3. Common law claims, “general” substantive federal common law
   2. Taxicab – A company reincorporated in a different state and brought suit in federal court, which was thought more friendly to businesses than state courts, whose judges are elected
   3. Erie R. Co. v. Tompkins – Overturned Swift, and declared that there would be no federal common law.
2. Erie Doctrine

   Rule	Choice of Law	Authority
   Standard of care	State law	Erie (1938)
   Conflict of laws	State law	Klaxon (1941)
   Statute of limitations	State law	York (1945)
   Burden of proof	State law	Cities Service Oil v. Dunlap
   Burden of pleading	Federal	Palmer v. Hoffman
   Discovery	Federal	Sibbach v. Wilson & Co.
   Venue transfers and forum selection	Federal	Stewart v. Ricoh
   Agreement to arbitrate	State law	Bernhardt v. Polygraphic

3. Erie Today

   	Federal Court	State Court
   Federal statutory or Constitutional claim	Substance: federal Procedure: federal	Substance: federal Procedure: state
   State statutory, Constitutional, or common law claim	Substance: state Procedure: federal	Substance: state Procedure: state

4. Distinguishing Substantive and Procedural Law
   1. Conflicts of laws – State rules apply [Erie]
   2. Outcome determination – If a law affects the outcome, it is substantive, and state law must be applied. [Guaranty Trust Co. v. York – Statute of limitations is substantive]
   3. Balancing test [Byrd – Allocation of roles of judge and jury is essential to federal system, so federal law applies]:
      1. If federal interest greater than state interest, and probability of outcome determinancy is low, federal law applies
      2. If federal interest is less than state interest, and probability of outcome determinancy is high, state law applies
   4. Hanna Test – Where a Federal Rule covers same issue as state law, unless ex ante Federal Rule appears to alter substantive rights or to be outcome determinative, use Federal Rule. Note: This displaces York’s outcome determination test and Byrd’s balancing test. [Hanna – Rule 4 enforces substantive rights and does not alter them; Rule 4 complies with REA and is thus an Act of Congress, so RDA and Erie don’t apply]

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