June 18, 2011
Campos on ATT v. Concepcion
Over at Prawfsblawg, Sergio Campos has posted some thoughts on ATT v. Concepcion.
From the post:
Here is the link to Erie. In most cases the underlying entitlements, such as an entitlement to avoid fraudulent conduct, are protected by state law. It would stand to reason that states should also have some say on how those substantive entitlements are procedurally protected, since, as John Dingell knows all too well, an entitlement is only as good as how it is protected. Accordingly, California should have a lot of leeway in how its substantive entitlements are procedurally protected, including prohibiting class waivers for certain state law claims. But it also stands to reason that the federal government, via its Commerce Clause powers, can also regulate interstate activity to further the protection of important entitlements. So to what extent can California define procedure for its entitlements without conflicting with federal objectives? And how are courts supposed to sort out these disputes in any given case?