Erie's Suppressed Premise

Michael Steven Green

William & Mary Law School

March 22, 2011

Minnesota Law Review, Vol. 95, p. 1111, 2011
William & Mary Law School Research Paper No. 09-87

The Erie doctrine is usually understood as a limitation on federal courts’ power. This Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts.

According to Erie Railroad Co. v. Tompkins, a federal court must follow state supreme court decisions when interpreting state law. But at the time that Erie was decided, some state supreme courts were still committed to Swift v. Tyson. They considered the content of their common law to be a factual matter, concerning which federal (and sister state) courts could make an independent judgment. Indeed, the Georgia Supreme Court still views its common law this way. In order to explain Brandeis’s conclusion in Erie that state supreme court decisions bind federal courts, even when the state supreme court does not want them to be binding, a premise must be added to his argument - one that limits state supreme court power in this area.

The missing premise is a non-discrimination principle that is a hitherto unrecognized - but essential - part of the Erie doctrine. A state supreme court can free federal courts of the duty to follow its decisions only if it is willing to free domestic courts of the same duty. It cannot discriminate concerning the binding effect of its decisions on the basis of whether the effect is in domestic or federal court.

A similar puzzle arises when a federal court interprets unsettled state law. The Supreme Court has suggested that a federal court should predict how the relevant state supreme court would decide. But many state supreme courts - including the New York Court of Appeals - have indicated that they do not care if federal (or sister state) courts use the predictive method concerning their unsettled law. Here, too, the non-discrimination principle latent in Erie explains how the Supreme Court can demand that federal courts adopt the predictive method, whatever a state supreme court has said about the matter.

The Article ends by briefly discussing the transformative effect that Erie’s non-discrimination principle should have for choice of law, where Swift v. Tyson remains ubiquitous.

Number of Pages in PDF File: 58

Keywords: Erie, Swift, federal common law, choice of law, legal positivism, full faith and credit, predictive method, federal procedure

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Date posted: March 23, 2011  

Suggested Citation

Green, Michael Steven, Erie's Suppressed Premise (March 22, 2011). Minnesota Law Review, Vol. 95, p. 1111, 2011; William & Mary Law School Research Paper No. 09-87. Available at SSRN: http://ssrn.com/abstract=1792525

Contact Information

Michael Steven Green (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-7746 (Phone)
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