1. Introduction: From Swift to Erie

2. Why Was Diversity Jurisdiction Created?

3. A Late 18 th Century Erie Problem Legal dispute between –MA Shipper –VA Grower What concerns might lead to need for diversity jurisdiction? –Need for a neutral forum –What else? –Where could case be brought? (Remember power theory)

4. Chronology of Approaches Swift –Federal Common Law Erie – Procedure v. Substance Guaranty Trust – Outcome Determinative Byrd – Balancing Hanna – Uneasy Synthesis Future – Primary v. Secondary

5. Fed-State Pendulum Swift Erie Guaranty ByrdHanna State Federal Future

6. Discussion Hypo Under Swift

7. Burden of Proof Bifurcated Trial

8. Under Swift When was state law applied? –State statutes –State Ct interpretation of state statutes –State Ct decisions re RE –State Ct decisions re “local usage.” When was federal law applied? –Torts –Contracts –Commercial Law –General Law The Conformity Act Prior to the Federal Rules Federal courts applied the procedures used in the state courts of the state in which they sit.

9. Discussion Hypo Under Erie

10. Burden of Proof Bifurcated Trial

11. Erie v. Tompkins How does Erie resolve the basic issue? What is the basis for Brandeis’s resolution of that issue in Erie? –Statutory Interpretation –Constitutional Concerns –Public Policy Arguments