Choice of Law Flashcards
What is the general rule for choice of law under Erie?
In a diversity case, the court applies state substantive law and federal procedural law.
In a federal question case, federal substantive, procedural and common law control.
What is substantive law and what is procedural law?
Substantive = elements of claim, statute of limitations, and tolling, and burdens of proof.
Procedural = Judge/jury allocations, assessment of attorneys fees.
How is a law that is unclear determined to be either procedural or substantive?
Valid Federal Law on Point
- Apply federal law.
- If Federal RULE: court must determine if valid under
Rules Enabling Act.
- Does the rule enlarge, modify or abridge a
substantive right? If no, apply rule. If yes, apply
rule unless it would affect substantive rights.
No Federal Law on Point
- Apply state law if failure to do so would be outcome determinative.
What is federal common law?
Judge-made law that preempts any inconsistent state or local law or rule. Only when encountering an important federal interest not covered by statute. (boundary disputes with states, claim preclusion).
Applies in admiralty cases, when US is a party, relations with foreign countries.
How is applicable state law determined?
Follow precedent of highest state court.
If none, must predict. Give “respectful attention to lower state court decisions, but no binding.
