An Essay Regarding Gasperini v. Center for Humanities, Inc. and the Demise of the Uniform Application of the Federal Rules of Civil Procedure
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Rebecca White Berch
affiliation not provided to SSRN
Mississippi Law Journal, Vol. 69, p. 715, 1999
Ever since the passage of the Rules of Decision Act in the formative years of the United States, the federal judiciary has grappled with the question of when a federal court will apply state law or rule to resolve an issue before it. The landmark case of Erie v. Tompkins broke ranks with a long and uniform line of cases formulating rules of general federal common law for deciding cases brought in the federal courts solely on the basis of diversity. The years since have witnessed misunderstanding and misapplication of Erie. The Supreme Court has expended extraordinary efforts to resolve the intractable problems in ways that not only comport with separation of powers and federalism principles, but also can be understood and applied by practitioners. In this area of the law, confusion reigns. In Gasperini v. Center for Humanities, Inc., the Court noted the "challenging endeavor" of clarifying this area of the law, but in attempting to do so, merely confounded the problem.
This article provides a brief overview of Supreme Court precedents in this area of law and examines the Gasperini decision. Gasperini changed the analysis of which rule--state or federal--a federal court will apply when deciding a diversity case. This article argues that Gasperini made matters worse and suggests that lower courts will wrestle with the breadth of Gasperini.
Number of Pages in PDF File: 34
Keywords: diversity, civil procedure, federalismAccepted Paper Series
Date posted: May 28, 2009
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