Erie's International Effect

Erie, a domiciliary of New York, in federal court in New York. 5 For our international Erie case, imagine that the accident had happened in Ontario, Canada or that Tompkins or Erie (or both) had been a domiciliary of Ontario when the accident in Pennsylvania occurred. 6 Erie stands, in part, for the principle that diversity jurisdiction does not give a federal court the power to make federal common law that displaces the state-law right upon which the plaintiff sues. 7 The scope of federal courts' power to make common law is a contested matter, 8 but at the very least it requires the presence of some federal regulatory interest, not just jurisdiction. 9Childress concedes that this core constitutional principle of Erie applies in international cases.He does not suggest that the federal court entertaining our international Erie case would have the power to make a federal common law rule governing Erie's duty of care to Tompkins merely because one or both of the parties is a foreign domiciliary or because the event being litigated occurred abroad. 10His point is solely that federal law should govern the choice between state and foreign law.Erie also stands for a principle of interpretive fidelity.It was not enough that the federal court in Erie applied Pennsylvania law.It had to defer to the Pennsylvania Supreme Court's interpretations of that law. 115 Id. 6 If Erie Railroad or Tompkins was a foreign domiciliary, the source of federal subject matter jurisdiction would be alienage rather than diversity.28 U.S.C. 1332(a)(2) (2006) (link).If both were a foreign domiciliary, there might be federal subject matter jurisdiction, provided it was joined to what was otherwise a diversity case, id. 1332(a)(3), or to a federal question action in a manner that gave it supplemental jurisdiction, id. 1367 (link).7 See, e.g., United States v. Little Lake Misere Land Co., 412 U.S. 580, 591 (1973) (stating that a principle of Erie is that the constitutional grant of diversity jurisdiction does not give federal courts the power to develop a "concomitant body of general federal law") (link); see also Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV.L. REV.881, 915-23 (1986) ("[T]he firm holding of Erie is that the existence of diversity jurisdiction does not provide a basis for making federal common law.");Michael Steven Green, Horizontal Erie and the Presumption of Forum Law, 109 MICH.L. REV.1237, 1244 (2011) ("Under Erie, federal courts do not possess lawmaking power by virtue of having subject matter jurisdiction.").In fact, this Erie principle applies beyond diversity (and alienage) jurisdiction to other circumstances in which a federal court can get jurisdiction over a state law action, such as supplemental jurisdiction or bankruptcy.See

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