Repressing Erie's Myth

74 Pages Posted: 28 Aug 2007

See all articles by Craig Green

Craig Green

Temple University - James E. Beasley School of Law


This Article seeks to alter basic perceptions of Erie v. Tompkins. Everyone knows Erie's requirement that federal courts apply state substantive law in diversity cases. But for some scholars and judges, Erie means much more. The case has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts.

My goal is to limit exaggerations of Erie's importance and forestall resultant threats to judicial power. This critique of Erie's myth has three parts:

First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism.

Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth's broadest consequences.

Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson's account of executive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue.

Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case's shadows.

Keywords: erie, federal common law, common law, customary international law, youngstown, hamdan, military commissions, positivism, federalism, separation of powers, sosa, alien tort statute, alien tort claims act, brandeis, ely, jackson, youngstown, steel seizures

JEL Classification: K10, K33, K30, K40, K41

Suggested Citation

Green, Craig, Repressing Erie's Myth. California Law Review, Vol. 95, 2007, Temple University Legal Studies Research Paper No. 2007-17, Available at SSRN:

Craig Green (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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