In Praise of Erie — And Its Eventual Demise

26 Pages Posted: 29 Sep 2013 Last revised: 12 Feb 2014

Date Written: 2013

Abstract

The article has three parts. Part I discusses Judge Friendly’s constitutional defense of Erie and explains why his article, though widely cited and even embraced by the Supreme Court, remains underestimated. Part II identifies several often overlooked elements of the pre-Erie regime of Swift v. Tyson that, we believe, are central to understanding the latent virtues of Swift, the problems with Erie, and the possibilities for a conflicts-of-law resolution of the disorders Erie has caused. Part III concludes with an attempt to synthesize the lessons of Erie and Swift, and a proffer of suggestions for fixing our broken conflicts-of-law system. Through this article we hope to contribute to the already expansive scholarship on Erie — in the interest of eventually laying it peacefully to rest.

Keywords: Erie, conflicts, Friendly, choice of law, Swift, Klaxon, forum shopping, laws, federalism, common law, Rules of Decision Act, Greve, Laycock, Bivens

JEL Classification: K1, K2, K3, K4, K00

Suggested Citation

Gasaway, Robert and Parrish, Ashley, In Praise of Erie — And Its Eventual Demise (2013). 10 Journal of Law, Economics and Policy 255 (2013), Available at SSRN: https://ssrn.com/abstract=2332020 or http://dx.doi.org/10.2139/ssrn.2332020

Robert Gasaway

Kirkland & Ellis LLP ( email )

200 East Randolph Drive
Chicago, IL 60601
United States
(202) 879-5175 (Phone)

Ashley Parrish (Contact Author)

King & Spalding LLP ( email )

United States
(202) 626-2627 (Phone)

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