WHAT LAW APPLIES?

No Federal Positive Law Federal Positive Law FRCP- narrower reading may mean state law should govern

Rules of Decision Act (28 USC §1652)- the laws of the several states, except where the
Constitution or treaties of the United States ofr Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United Sates, in cases where they apply

Federal Statute; Constitutional Provision; Treaty Provision

Direct Clash?

No direct clash under Hanna

Byrd- Is state policy substantive OR bound up (standard for finding liability) with a substantive right (out of court conduct)?

Byrd v. Blue Ridge- Form or Mode of Enforcing Substantive Right?

Supremacy Clause: FEDERAL law/statute must apply

Rules Enabling Act: (1)Valid under REA? (2)Constitutionalneed only be “arguably procedural”

MUST APPLY STATE LAW

Guaranty Trust- Outcome Determinative? Modified by

Balancing of state and federal interests (Byrd)- where equal there has been no decision

IF YES to both, apply FEDERAL law

Byrd- for form and mode, when failure to apply state law would be outcome determinative, state law If NO because it enlarges, bridges or shall apply in the absence modifies a state right, of other considerations then apply RDA analysis. (unless it has only an incidental effect) under 28 § 2072(b)

Hanna v. Plumer- (dicta) the question should be whether the difference between applying state law and ignoring state law would influence the plaintiff in choosing the federal forum

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