Article by Richard D. Freer
Part I of this Article demonstrates that the forum selection clause cases are an accurate microcosm of vertical choice of law. It also details the clash between federal and state law, the importance of its principled resolution, and how the federal courts (including the Supreme Court in Stewart) have failed to resolve it.
Part II criticizes Stewart as an example of the increasingly overzealous use of the Hanna prong, which effects an unprincipled trampling of legitimate state policies. This Part of the Article suggests that Hanna be recognized as a tool of preemption, and thus be treated in accordance with the general preemption principle of narrow construction. In addition, Part II demonstrates that the Supreme Court's fetish for applying Hanna in the Stewart case produces absurd practical results by thwarting the enforcement of forum selection clauses, generating litigation, and wreaking havoc with horizontal choice of law.
Finally, Part III concludes that the forum selection clause issue is a matter on which state law must govern and urges a more orderly assessment of the Rules of Decision Act prong. This Part comes to the rather startling conclusion that not every Rules of Decision Act case needs to be difficult. In so doing, Part III reiterates the theme that the federal courts are ignoring the Erie doctrine and ushering in an era of unprincipled hegemony of federal law.
About the Author
Richard D. Freer. Professor of Law, Emory University. B.A. 1975, University of California, San Diego; J.D. 1978, University of California, Los Angeles.
Citation
63 Tul. L. Rev. 1087 (1989)