The Unseen Track of 'Erie Railroad': Why History and Jurisprudence Suggest a More Straightforward Form of 'Erie' Analysis

65 Pages Posted: 27 May 2008

Abstract

In the seventy years since the Court announced it, the 'Erie' doctrine and the vertical choice-of-law inquiry that it attempts to control have become almost hopelessly complex. This article suggests a different way to characterize the vertical choice-of-law problem that explains all of the previous Erie cases and will help to predict the result of future cases accurately. The vertical choice-of-law process becomes more understandable if one views it through the lens of government interest analysis, a common conflict-of-laws technique. There are some areas, such as torts (as in 'Erie' itself), where the Court has said that the Constitution does not permit there to be a federal interest. In others, federal interests find expression in constitutional, statutory or regulatory provisions, each of which overcomes conflicting state law because of supremacy. Only when there is no regulatory material is the Court faced with what Chief Justice Warren called the relatively unguided 'Erie' choice, and in those cases, the Court has used a balancing approach since its decision in Byrd, which was no more than a government interest analysis without the label. It turns out that all Erie problems are amenable to this approach.

Keywords: Erie doctrine, vertical choice-of-law, federalism

Suggested Citation

Doernberg, Donald L., The Unseen Track of 'Erie Railroad': Why History and Jurisprudence Suggest a More Straightforward Form of 'Erie' Analysis. West Virginia Law Review, Vol. 109, No. 3, 2007, Available at SSRN: https://ssrn.com/abstract=1136143

Donald L. Doernberg (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603-3796
United States
914-422-4368 (Phone)
914-422-4168 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
70
Abstract Views
1,217
rank
380,816
PlumX Metrics