Adrift on <i>Erie</i>: Characterizing Forum-Selection Clauses

Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis.

Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture later, and only as a consequence of the conflict-of-laws rule that a forum will use its own procedural law even when deciding a case according to foreign substantive law. Yet Erie analysis, as the Supreme Court has developed it, departs from conflict of laws substance/procedure characterization and is understood as conceptually distinct. This Article argues that the distinction is a mistake: properly understood, Erie analysis really is conflicts characterization, with a few modifications.

Viewing Erie from the conflict of laws perspective illuminates the actual issues at stake. As a method of demonstrating the superiority of this perspective, we turn in the last section to a particularly knotty Erie problem: the treatment of contractual choice-of-forum clauses.