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Posted: **Tue Apr 19, 2011 1:19 pm**

Anyone have an erie flowchart which they'd be kind enough to share?

Thanks.

Posted: **Tue Apr 19, 2011 11:36 pm**

Posted: **Tue Apr 19, 2011 11:43 pm**

Don't really have a flow chart but in diversity cases, federal courts must apply the law that would be applied by the courts of the state in which they sit. Except in matters governed by federal law, the law to be applied in any case is state law, whether it is statutory or common law. State substantive law and federal procedural law is applied where a federal court is enforcing a state created right (includes service of process). To determine if a law is substantive or procedural for Erie purposes, the question, “would it affect the outcome of the litigation if federal court disregarded state law that would be controlling if the case was brought in state court?” should be asked. If the answer is “yes” then state law should be applied. Even if state law is arguably procedural (statute of limitations), still apply state law in interest of achieving uniformity. The federal court, under diversity, must do whatever the state court within that state would do. Look to the State Court decisions and statutes.

Posted: **Wed Apr 20, 2011 12:20 am**

From http://www.onelbriefs.com/outlines/civpro/erie.htm

Code: Select all

In diversity cases in federal court, the court must apply federal procedural law but state substantive law, including state-created common law…mostly. (Erie and RDA) Analysis tracks…

    State law vs. federal statute (authority from Supremacy Clause)/FRCP (authority from REA 2072)…
        Is the statute/FRCP is sufficiently broad to control the issue before the court? Does it "occupy the field"? Is it "sufficiently broad to control the issue before the court"? (Walker, Stewart)
        If so, does the statute/FRCP represent a valid exercise of Congress' authority under the Constitution? (Hanna)
        For FRCPs, is it "arguably procedural" and will using not "abridge, enlarge, or modify a substantive right"? (REA, used in Sibbach)
            If passes all of these questions, statute/FRCP controls.
             

    State law vs. federal procedural common law (laches, "shocks the conscience")(authority from RDA 1652)…
        Is the judge-made federal rule broad enough to cover the circumstances? (rules are often interpreted narrowly to avoid conflict, Gasperini, Walker)
            No. Follow state rule.
            Yes. Is the federal rule at least arguably procedural (and fall in line with federal statutes and rules)?
                No. Follow state rule.
                Yes. Would following the federal rule be outcome-determinative AND encourage forum-shopping? (refined outcome-determinative test, "twin aims of Erie", from Hanna)
                    Yes. Would federal policy trump the application of state law under Byrd balancing ("countervailing factors", Byrd)?
                        Yes. Apply judge-made federal rule.
                        No. Apply state rule.
                    No. Apply judge-made federal rule.

Not quite a flowchart but hopefully useful.

Posted: **Wed Apr 20, 2011 8:20 pm**

--ImageRemoved--

this was posted somewhere else here can't remember who originally uploaded it.

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