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Normalizing Erie

Posted by on Monday, October 17, 2016 in Articles, Volume 69, Volume 69, Number 5.

Normalizing Erie


This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines—such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special “enclaves” of federal common law—courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Erie doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous literature on Erie has failed to recognize that the Erie doctrine is a response to the same problem addressed by ordinary federalism doctrines: In the absence of an explicit congressional or constitutional directive, how should courts sitting in diversity jurisdiction respond to clashes between state law and unarticulated (that is, uncodified) federal interests?

This Article explains that Erie’s unconventional answer to the problem of unarticulated federal interests is a fluke of history. Pivotal decisions about the Erie doctrine, unlike pivotal decisions about ordinary federalism doctrines, occurred at a time of heightened concern about judicial overreaching. Those concerns distorted the Court’s decisionmaking, and Erie’s response to the common federalism question consequently diverged from ordinary federalism. Recognizing and putting aside the distorting influence clears a path to re-envisioning the doctrine and replacing the current Erie analysis with the familiar and established framework of ordinary federalism. Doing so simultaneously brings Erie back into line with ordinary federalism, increases judicial transparency, and resolves tensions within the existing Erie doctrine.


Herman O. Loewenstein Professor of Law, Vanderbilt University.