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Civil Procedure II
University of Kentucky School of Law
Bauries, Scott R.

The Erie Doctrine
Only use Erie Analysis When:
The federal court has SMJ
There is a conflict between a federal and state law
The twin aims of Erie are to:
Discourage forum shopping
Avoid inequitable distribution of the law
Application of Erie
Ask: Is the conflicting rule substantive or procedural?
Modified Outcome Determinative Test:
Whenever the difference between the choice of fed/state law will change the outcome of the case, it’s substantive (pick state law)
Inquire as to whether any countervailing federal interests existed that should be weighed against the state’s interests
If the rule is substantive, apply state law (unless it conflicts w/ the Constitution or valid federal statute)
When does federal procedure automatically trump state law?
The U.S. Constitution
Provisions apply even if they conflict with state law, regardless of if they are substantive or procedural
Federal Statute
Federal statute trumps state law if it is valid and arguably procedural
What if state law conflicts with a FRCP?
Analysis under the REA (28 USC § 2072)
(a) – explaining how the FRCP should be used to regulate procedure in federal courts
Almost all FRCP will meet the first requirement because they “really regulate procedure” (Sibbach Test)
(b) – the FRCP cannot “abridge, enlarge, or modify” a substantive right
Analyses from Shady Grove (no majority opinion), continuum from least to most deference given to state law
Scalia – appeared to read this exclusion out of the statute
Stevens – argued Scalia improperly ignored subsection (b), but pointed out there was a high bar, there must be little doubt that the FRCP would alter a state-created right
Ginsburg – accommodative approach: reiterates the importance of Erie and the importance of federalism and the states for being able to choose their own procedural law
Federal Common Law
Decide if party would choose one forum over another based on the difference in law/procedure
If so, then choose state law (avoid forum shopping)
Three Opinions on Choice of Law
Scalia (Shady Grove)
Gives much deference to the FRCP, without mentioning part (b) the Rules Enabling Act
In Gasperini, Scalia saw NY’s law as directly in conflict with a FRCP and with the Reexamination Clause
In Shady Grove, Scalia wrote for the majority and said FRCP 23 (class actions) should apply because the Ps met all of the requirements under that rule, even though it was in direct conflict with a NY statute
The case could still be decided in federal court, using NY law
Diverged from Scalia’s view in the sense that he doesn’t think in a federal court applying state law, federal procedural law would always trump state procedural law
His rule from Shady Grove: If a FRCP “would displace a state law that is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state-created right,” then the federal procedural rule “cannot govern” such a case
Ginsburg (Gasperini)
Wants to accommodate state and federal interests, she thinks it’s very important to show deference to state reg

urt can certify a question (usually to that state’s highest court,
State court then provides an advisory opinion to the federal court, which that court can then use to adjudicate the issue in question
Reasons Why Federal Court May Want to Certify a Question (Craig v. FedEx)
Conflicting decisions from state courts on the issue
Several decisions, in various levels of Kanas’ court system, were somewhat contradictory on what defines an “independent contractor”
Courts from other states have made different determinations on the issue
Some states found that FedEx drivers were independent contractors, while others did not
The issue is vital, or outcome determinative for the case
The heart of the issue in this case is whether the FedEx employees were independent contractors, affecting their overtime pay and wages
The issue would be a case of first impression for the state court
Making an “Erie Guess”
Court can simply predict what the state’s highest court would decide on the question of law at issue
Reasons for Making an Erie Guess
This is an option for a federal court when the state does not allow for certified questions
Even if the state does allow certified questions, a federal court can make an Erie guess at its own discretion w/o the state court’s advice