6 - A Reply

Summary

Introduction

As Professor Green notes at the outset of his response to my chapter, he and I are interested in many of the same questions concerning the relationship of choice-of-law theory to the doctrine of Erie Railroad v. Tompkins. It is gratifying to learn that we agree on many aspects of this hotly contested area of law. However, just as he feels obliged, in the final analysis, to identify areas where he suspects we disagree – why else write a response? – I cannot resist the opportunity to identify some of my own areas of suspected disagreement, and to try to persuade the reader that the better view is mine.

Given limitations of time and space, not all of his questions can be discussed here. There are two important points, however, that must be addressed. The first is Professor Green's claim that “horizontal Erie,” a doctrine of constitutional stature, requires deference to a state's “whole law” rather than just its “internal law.” The second concerns the compatibility of post-Erie jurisprudence with refusal to consult another state's choice-of-law rules.