Juridical Chameleons in the 'New Erie' Canal

Abstract

Justice Jackson cautioned that Federal law is no juridical chameleon, changing complexion. . . . That may be true, but reviewing the Court's recent history in federal common law cases demonstrates, particularly those in which Members of the Court cast their opinions in separation-of-powers terms (sometimes referred to as the New-Erie Doctrine), that the individual Justices routinely change their approaches to creating federal common law. The doctrine has become the antithesis of a neutral principle of adjudication. In some circumstances a Justice will rely on the doctrine while ignoring it in others, and there appears to be no principled basis for the difference. This article suggests that federal courts have considerable common law powers that support rather than undercut separation-of-powers principles. Separation of powers is not offended when federal courts create common law, provided that they restrain themselves to implementing policy inherent in the Constitution or in federal statutes rather than creating policy as a matter of judicial fiat.

Keywords: Erie, separation of powers, New Erie, federalism