- Wouldn't choose court based on paper size...
- So paper size is not considered "substantive" for purposes of the Erie analysis, as it does not influence the outcome.
- Only a "form and mode" if a state would not, for example, rethink tort law rules based on the issue.
- If the state could make this argument, the is is "bound up"
(concurrence: primary private/out-of-courtroom activity)
- Shouldn't impact "substantive" rights...
- Analysis:
- 1. Positive enactment in federal law (like FRCP)?
- a. If yes = is Rules Enabling Act Constitutional? YES.
- b. Does the federal rule comport with the law? Almost always YES.
- THEN APPLY FEDERAL LAW.
- 2. Is state practice "bound up" with substantive rights?
- Yes = APPLY STATE LAW.
- 3. Is it "outcome determinative"?
- Yes?
- Will induce forum shopping = APPLY STATE LAW.
- UNLESS countervailing federal law...
- Such as a judge vs. jury deciding an issue.
- No?
- FEDERAL LAW