A question for the Civ Pro profs in the audience: How do you teach students to do the “relatively unguided Erie analysis under the RDA? (The
In theory, this has four pieces: Two York (substantial variance in outcome and inducing forum shopping) and two Byrd (whether the state rule is bound up with substantive social policy and whether there are countervailing federal interests in not applying state law).
So:
• Do you just include York and ignore everything else? A lot of lower courts do this?
• Do you include one or both of Byrd?
• If you include some Byrd, in what order? Is it York then Byrd? Is it better to start with Byrd‘s “bound up with substantive policy” element, then proceed to York, then consider countervailing federal interests as a federal veto? Something else?
My approach has always been York then Byrd, which I think is the best way to reconcile the doctrine? But I get the sense that lower courts do not do it this way and so i should be approaching it differently. In particular, I don’t have a good way to get at pure substantive law.
Thoughts welcome.