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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


                                                       Donald   Earl  Childress  lit


     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).
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).


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