Notre Dame Law Review
This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence. 2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its progeny. Decades of jurisprudence have produced as much consternation as enlightenment. Successive generations of students and lawyers have struggled to understand an ever-expanding constellation of opaque precedents. Even mentioning the word “Erie” can invoke feelings of dread. That reaction is unfortunate because the issues that Erie confronts are vitally important and endlessly fascinating. Erie addresses the relationship between governments in a federal system, the division of powers within governments, and the essential elements of the rule of law. So how did a doctrine this central to the constitutional order become a morass of often inscrutable decisions? . Confusion arises in part because what courts and commentators label “the Erie doctrine” comprises four distinct sets of inquiries serving four distinct functions. Erie governs: (1) the creation of federal law; (2) the interpretation of its scope; (3) the prioritization of federal law relative to state law; and (4) the adoption of non-federal law when federal law is inapplicable. These four inquiries collectively help courts make three kinds of decisions when analyzing choice of law. Courts must determine: (1) which government is an authoritative source of law for a particular dispute; (2) which institution within that government is authoritative; and (3) which rule that institution would endorse. Bundling these distinct functions and choices into a single expansive “Erie” doctrine shrouds decisionmaking in a haze of generalities. Fragmenting Erie into its components highlights how different concerns and criteria are relevant in different contexts, which in turn can help resolve a wide variety of theoretical and practical problems. The Article provides new insights into several recurring doctrinal puzzles. For example, it considers how choice of law rules in federal court are a form of federal common law and whether Klaxon is an appropriate federal common law rule, which types of state institutions federal diversity courts should emulate and thus whether federal courts should attempt to predict the decisions of a state’s highest court, the extent to which federal courts can create common law that incorporates general law (including customary international law), what default rules should guide interpretation of federal laws that might conflict with state laws, and the distinction between statutory and common law under the Supremacy Clause and Hanna’s “twin aims” test.
Allan Erbsen, Erie's Four Functions: Reframing Choice of Law in Federal Courts, 89 Notre Dame L. Rev. 579 (2013), available at https://scholarship.law.umn.edu/faculty_articles/45.