Erie As a Way of Life
16 Pages Posted: 30 Oct 2018
Date Written: October 15, 2018
This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just, right, and true. Second, I consider Erie’s understanding of the role of the federal courts as bodies that lack general lawmaking powers. This understanding shapes current debates about judicial activism. But it is also threatened by the advent of federal multi-district litigation, which stresses the importance of one federal court “to rule them all” in consolidating solutions to broad social problems. Third, I assess Erie’s role in defining contemporary American federalism, which rejects rigid subject-matter categories for state and national power and instead stresses the political and procedural checks on national lawmaking. Erie’s model, however, is increasingly circumvented by Executive lawmaking that circumvents national legislative channels. Finally, I examine Erie as the key exemplar of the Legal Process School’s way of thinking about law and political conflict. That school of jurisprudence responded to a breakdown of national consensus on substantive norms by stressing the value of legitimate procedures for resolving disputes. Although the Legal Process School is not much in fashion these days, agreement on legitimate institutional allocations of authority may offer a plausible antidote to political polarization and the breakdown of civil discourse over substantive values.
Keywords: Erie, federal common law, positivism, Legal Process, separation of powers, federalism
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