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Vol. 103, Issue 2


Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law

Kevin M. Clermont, Ziff Professor Law, Cornell University.

28 Jul 2020

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law 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 the 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 involves the recognition of the other sovereign’s law properly governing by its own force, while adoption follows from voluntary consultation of the other’s law while formulating the local rule of decision in pursuit of fairness, convenience, or other local policies. 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 federalist implications for federal and state courts to the modifability of the sovereign’s law and the availability of original and appellate jurisdiction in the local courts.

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