Vertical Uniformity and Horizontal Chaos

INTRODUCTION

Chapter 10 suggests that the whole Erie problem was the framers’ fault, for creating a federal form of government. But that isn’t really true. Another part of the problem is the colonists’ fault because they settled in separate colonies. Those colonies developed more or less independently for 150 years before they became states, and they retain a great deal of autonomy under our constitution. This autonomy—from each other as well as from federal control—has some very interesting consequences for our judicial system.

A fundamental consequence, not generally appreciated, is that “the law” governing many types of claims can differ from state to state. The law of torts, for example, can be, and often is, one thing in Rome, Wisconsin, and another in Athens, Ohio. As “Easy Erie” explains, there is no general federal authority to “make” common law in areas such as tort law, so each state has to make its own. Also, there is nothing in the Constitution or in nature that says Wisconsin has to make the same tort law that Ohio does. Very frequently they don’t, so that a tort case might come out differently if it were decided under Ohio law than it would if it were decided under Wisconsin law. The same is true in many other areas, such as commercial law, probate, contracts, and property. In this respect, the states are a little like independent countries, each of which has the authority to develop its own rules of law to apply to its own cases.

This phenomenon, that the 50 states may have 50 different rules on the duty of care to a trespasser, or the enforcement of exclusive contracts, is in itself surprising but tolerable. It is part of the price we pay for having a system of divided sovereignty, in which the states retain the power to make law in the many areas not delegated to the federal government. But this doctrine of state autonomy has a very unruly stepchild, the problem of “choice of law,” which bedevils state courts as well as federal ones. This chapter explores the interaction of Erie’s state law mandate with the curious quagmire[1] known as choice of law.