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Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones
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Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …
Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii
Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii
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Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article …
Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff
Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff
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For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the …