Author ORCID Identifier
Thomas Arthur 0000-0003-0411-0824
Vertical choice of law, Rules of Decision Act, Federal Rules of Civil Procedure, Rules Enabling Act, Judicial federalism, Supreme Court, State law
We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in Shady Grove demonstrate, the three interests identified in Byrd are also present in cases governed by the Rules Enabling Act ("REA"). Our final thesis is that the Supreme Court should expressly recognize the applicability of the core interests embraced by Byrd to all Erie doctrine cases and incorporate them into the legal tests for resolving them.
Creighton Law Review
Richard D. Freer & Thomas C. Arthur, The Irrepressible Influence of Byrd, 44 CREIGHTON L. REV. 61 (2010).
Civil Procedure Commons, Conflict of Laws Commons, State and Local Government Law Commons, Supreme Court of the United States Commons