Settling Erie Issues:

Fed. Ct. sits in (1)Diversity, (2)State law w/ embedded FQ, or (3)Supplemental J

dx,
and theres a difference between State and Fed. Ct approach to a question or issue
:
Is the issue arguably procedural, or substantive issue of state law?
(CHECK LIST TO SEE IF SCOTUS DECIDED!)
YES, its arguably procedural
Is the fed. procedure ON POINT (a.k.a. Direct Clash?) (Look at each fed. provisi
on. Does it address the precise point at issue? For instance, does it list minim
um requirements for service, or an exhaustive list of allowable rules?
Confrontational Approach:
YES, fed rule IS on point.
Is the federal rule mandated by congressional STATUTE?
YES
/
NO
Is the fed rule from FRCP?
NO
Then its federal judicial practice (or youre confused.)
Time for full HANNA / ERIE!!! (Kinda-sorta balancing?)
5) Could you BALANCE both interests? @Gasperini Apply parts of both rules withou
t offending fed or state?
2) Micro Outcome Determinative: Would fed/state choice determine outcome of this c
ase? (If yes, that favors state law, but #1= more important)
2) Macro Outcomes: Eries 2 Aims (@Hanna) Would applying fed. law promote forum-shop
ping or inequitable administration? (If yes, that favors STATE)

Use
STATE Rule

4) Countervailing Fed. Interest? Constitutional prerogative, like judge/jury sep

aration in Byrd? (If yes, that favors FEDERAL rule.
/
YES, of course.
(Rules Cmtee, Scotus, + Congress approve FRCP.)
Valid under REA? (per @Hanna)
(1) Does it really regulate procedure, and (2) are we sure it doesnt abridge, enlarg
e, or modify any substantive right?
HINT: Well apply it
(Rules Rule @Hanna). Still . . .
3) Q from Harlan Concurrence in @Hanna: Does fed/state choice affect decisions a
out primary human conduct? (If yes, that favors state law.)
.
YES
Non-Confrontational Approach:
NO, fed. rule is NOT on point (no conflict)
NO, its Substantive

Use FED
Rule

NO (Not
Likely!) Dunno if that means use state law or treat like judge-made practice
Is that law constitutional?
YES, of course. (This isnt Con-law!)
/