A Pox on Both Your Houses: Why The Courts Can't Fix The Erie Doctrine

32 Pages Posted: 8 Feb 2013  

Suzanna Sherry

Vanderbilt University - Law School

Date Written: February 6, 2013

Abstract

As Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie doctrine and between it and the Federal Rules of Civil Procedure. The Court’s latest Erie decision, Shady Grove, was yet another attempt to separate substance from procedure and navigate the strait between the Rules of Decision Act and the Rules Enabling Act. It was a disaster, in large part because of the internal incoherence of the Erie doctrine itself and its profound incompatibility with the guiding principles of the Federal Rules of Civil Procedure. Shady Grove thus brings to the forefront the need for a normative choice between federal procedural uniformity and transsubstantivity on the one hand, and state authority on the other. I suggest that instead of filtering that normative choice through the convoluted and self-contradictory Erie doctrine, judges should confront it directly as they do in other contexts (including most prominently preemption doctrine). This suggestion in turn has implications far beyond the narrow Shady Grove issue.

Keywords: judicial review, judges, activism, popular constitutionalism

Suggested Citation

Sherry, Suzanna, A Pox on Both Your Houses: Why The Courts Can't Fix The Erie Doctrine (February 6, 2013). George Mason Law Review, Fall 2013, Forthcoming; Vanderbilt Public Law Research Paper No. 13-2. Available at SSRN: https://ssrn.com/abstract=2213312

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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