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.
Update: I received some great emails on this. I want to highlight one response from a professor (who I will keep anonymous, unless they tell me otherwise), which adds two pieces to how I have taught it.
First, it reaches Byrd only if York points to state law. This makes sense. Byrd‘s “bound up” prong likely pushes in the same direction as York–if the state rule affects outcomes and induces forum shopping, it probably is bound up with substantive policies. Byrd‘s “countervailing federal interest” prong thus acts as something of a veto–state law applies (because the other 3 prongs say so) unless the federal rule reflects some overwhelming federal interest (e.g., deferential appellate review in Gasperini).
Second, it adds a threshold question in the unguided Erie analysis before York–is the state rule “arguably procedural?” This, of course, is the first step in the REA analysis–whether an FRCP is a proper rule of practice and procedure under § 2072(a). But this approach applies it to unguided Erie: If the state rule is not arguably procedural, it is “obviously substantive;” the federal court must apply it under the “command of Erie.” If the rule is arguably procedural (whether purely procedural or a mixed rule), the analysis proceeds to York and Byrd (if necessary). I think this captures the analysis both as it should be and as lower courts do it, without relying on labels of substance or procedure.
Another prof offered a practical conclusion, which I think I also may steal: In practice, federal courts will apply state law unless a written provision (FRCP, FRE, statute, local rule) controls. Even if the procedure is in no way outcome-determinative (the old “blue brief cover” example), federal courts just apply it, unless something else is lurking in the case.