Article Stub: Contracting into Federal Common Law

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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2 Responses

  1. Scott Dodson says:

    As a descriptive matter, neither the ability to create federal common law nor the applicability of Erie is waivable or conferrable at the choice of the parties. So how an ex ante contract would make any difference (and how would that provision even look, since the court is not in privity)? As a normative matter, parties already get the flexibility to create privatized procedure relatively wholesale through arbitration, so why would customized public litigation be valuable enough to sacrifice the public goods of judicial adjudication to private whims?

  2. Dave Hoffman says:

    Simply, the parties would choose pre-Erie Swift common law as their law, sort of like choosing foreign law. As you point out, since there’s no connection with the forum, and the choice would probably be seen as whimsical (it is!!) under the RST, I don’t think it’s enforceable.

    I think it’s true that this is a form of subsidy that courts would give litigants, but how is it a different subsidy in kind than the parties choosing the law of another state?