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Juridical Chameleons in the 'New Erie' Canal

Don L. Doernberg

Pace University - School of Law

Utah Law Review, Vol. 1990, No. 4, 1990

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.

Number of Pages in PDF File: 53

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

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Date posted: May 27, 2008  

Suggested Citation

Doernberg, Don L., Juridical Chameleons in the 'New Erie' Canal. Utah Law Review, Vol. 1990, No. 4, 1990. Available at SSRN: https://ssrn.com/abstract=1136172

Contact Information

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)
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