Applying vs. Adopting Another Sovereign's Law

Abstract

Familiar to all Federal Courts enthusiasts is the Erie distinction between the binding application of state law by federal actors and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application means recognizing that the proper reach of the other sovereign’s law calls for it to govern by its own force, while adoption means voluntary consultation of the other’s law for reasons of fairness, convenience, or other local policies in formulating the local rule of decision. The applying/adopting distinction can be difficult to draw, but draw it we must because many binary practical consequences turn on it. Those consequences range beyond the implications of Erie and reverse-Erie to the modifiability of the other’s law and the availability of original and appellate jurisdiction in the local courts.