Sooner or later, any appellate practitioner will be faced with the need to advocate, or oppose, adoption of a novel cause of action, theory of liability or affirmative defense. In both the Pennsylvania and federal court systems, appellate courts profess a reluctance to entertain novel arguments, sometimes even as they are, in fact, doing so.
In federal court, judicial reluctance to adopt novel theories and (to a lesser extent) defenses, is inherent in the limited power of federal courts over state law in diversity cases proceeding under Erie Railroad v. Tompkins, 304 U.S. 64 (1938). Since federal courts only borrow, and do not make, state law, there is an inherent reluctance to make avant garde predictions, particularly those that would expand liability. The U.S. Supreme Court gave voice to this reluctance in Day & Zimmermann v. Challoner, 423 U.S. 3 (1975): “A federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the state in which the federal court sits.”
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