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108 Nw. U. L. Rev. Online 1 (2013)

handle is hein.journals/nulro108 and id is 1 raw text is: Copyright 2013 by Northwestern University School of Law Vol. 108 Northwestern University Law Review ERIE'S INTERNATIONAL EFFECT: A REPLY Donald Earl Childress lit INTRODUCTION If recent trends continue, it is likely that U.S. federal district courts sitting in diversity or alienage will confront transnational choice of law issues' in a significant number of cases in the years to come.2 Currently, when resolving these issues, federal district courts unflinchingly follow state choice of law rules to determine the governing substantive law (U.S. state or foreign).3 Federal courts believe they are compelled by the Erie doctrine to follow state choice of law rules even in transnational cases because, according to the Supreme Court in a decision from the 1970s that predates the substantial expansion of transnational litigation, a federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.4 Even when the foreign affairs or public policy interests of the United States might be implicated in the case, and even when those interests might be significantly different from the forum state's interests, federal courts apply state choice of law rules. Put simply, transnational Associate Professor of Law, Pepperdine University School of Law. I thank Nathan Brenner, Peter Rogers, Chloe Rossen, Courtney Shike, Sarah Wilson, and the editors of the Northwestern University Law Review Colloquy for their excellent editing efforts. Cameron Flynn's research assistance is gratefully acknowledged. As used here, transnational choice of law refers to a case where a federal court is asked to choose between applying U.S. law (e.g., the law of Virginia) or foreign, non-U.S. law (e.g., the law of France). See SYMEON C. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FuTURE 3-4 (2006) (defining international (state) conflicts as conflicts between the laws of the several states and the laws of foreign countries). Transnational choice of law issues would tend to arise in cases involving a foreign plaintiff, a foreign defendant, acts or omissions occurring in a foreign country, or some combination of these elements. 2 See Marcus S. Quintanilla & Christopher A. Whytock, The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law, 18 Sw. J. INT'L LAW 31, 37 (2011) (Our third conjecture is that in 2021, U.S. judges and lawyers will encounter issues involving the law of foreign countries more often than ever.). There is also reason to believe that state courts will confront similar issues. See, e.g., Donald Earl Childress III, The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation, 100 GEo. L.J. 709 (2012); Christopher A. Whytock, Donald Earl Childress III, & Michael D. Ramsey, Foreword: After Kiobel-International Human Rights Litigation in State Courts and Under State Law, 3 U.C. IRVINE L. REV. 1 (2013). 3 See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding that under the Erie doctrine, a federal court must apply state choice of law rules). 4 Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam). 1

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