Erie's International Effect

In his important article, When Erie Goes International, Professor Childress addresses the marvelous question of the Erie doctrine's application in an international context. 1 In particular, Childress argues that Klaxon Co. v. Stentor Electric Manufacturing Co., 2 which held that a federal court sitting in diversity (or alienage) must borrow the choice-of-law rules of the state where the federal court is located, should not apply when the federal court chooses between state law and the law of a foreign nation.3 In this Essay, I have three points to make in response-one clarificatory and two critical.The clarificatory point is that even if Childress is correct, the bulk of the Erie doctrine applies unchanged in international cases.Childress's arguments are directed solely to Klaxon and international choice of law.The first critical point concerns the merits of Childress's arguments, all but one of which give us no reason to think that Klaxon should be abandoned in international cases.The one argument that has any success is that a federal court's choice between state and foreign law implicates federal interests in foreign relations, in particular comity with the foreign nation.These federal interests can indeed override Klaxon's command.But this brings me to my second critical point: Childress exaggerates the extent to which these federal interests will displace Klaxon.Whereas he thinks that federal law will preempt much-or perhaps all-state law on international choice of law, I argue that preemption will be rare. I. MOST OF ERIE STILL APPLIES IN AN INTERNATIONAL CONTEXTEVEN IF CHILDRESS'S ARGUMENTS SUCCEED Even if the arguments in Childress's article succeed, their effect is relatively narrow.Most of the Erie doctrine still applies in an international context.To see why, consider an international Erie Railroad Co. v. Tompkins.4 In the original Erie, Tompkins, a Pennsylvania domiciliary, was struck by something protruding from one of Erie's trains-probably an open door-while trespassing on Erie's property in Pennsylvania.He sued

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