Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie

Abstract:     
This article addresses the problem that federal courts face when they are asked to adjudicate cases presenting novel or unsettled questions of state law. The article suggests that the Supreme Court's decision in Erie Railroad Co. v. Tompkins rests on constitutional principles of judicial federalism, and was facilitated by the Court's application of legal positivism to state judge-made law. The article goes on to evaluate several competing methods for ascertaining state law, including prediction, abstention, the static approach, and certification. The article concludes that certification best implements the principles of judicial federalism underlying Erie, and thus counsels federal courts to employ a presumption in favor of certification.

Accepted Paper Series