A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law

10 U.C. Irvine L. Rev., Forthcoming

98 Pages Posted: 9 Jun 2020

See all articles by Allan Erbsen

Allan Erbsen

University of Minnesota - Twin Cities - School of Law

Date Written: May 20, 2020

Abstract

This Article proposes overhauling the Supreme Court’s approach to choice of law under Erie and Hanna. It develops three primary points.

First, Hanna’s “unguided” “twin aims” of Erie test for resolving conflicts between federal common law and state law is irredeemably flawed. The test is a canon of interpretation masquerading as a choice-of-law rule and fails at both tasks. The Hanna approach:

(1) relies on an arbitrary distinction between federal common law and statutory law that elides the indeterminate boundary between lawmaking and interpretation;

(2) fails to directly confront questions about federal common law’s validity and scope;

(3) cannot rely on the oft-cited but inapposite Rules of Decision Act; and

(4) ignores the judiciary’s authority to fill gaps in procedural codes with federal common law.

This Article is also the first to extensively explore how FRCP 83’s authorization of gap-filling undermines Hanna’s approach to choice of law.

Second, preemption doctrine implementing the Supremacy Clause should fill the choice-of-law role that courts mistakenly assign to Hanna. Under the Supremacy Clause, valid federal law — including federal common law — preempts state law on matters within the federal law’s scope. The “unguided” Hanna inquiry is misguided because it invents a distracting alternative to preemption analysis.

Third, reframing choice of law in terms of preemption spotlights policy questions that courts applying Hanna overlook. Preemption can occur only when a particular federal law is a valid exercise of federal lawmaking power and encompasses a disputed issue. Courts considering whether to apply federal law — including federal common law — must therefore assess the federal law’s validity and breadth. Relevant questions include:

(1) whether the federal government has authority to create law covering the issue;

(2) if so, which federal institutions — Congress or the judiciary — can create law; and

(3) whether federal courts should interpret the ensuing federal law broadly or narrowly to embrace or avoid conflict with state law.

These sensitive policy questions would benefit from direct attention and should not be blurred with Hanna’s tangents.

This approach would make choice of law analysis more coherent, enhance understanding of federal common law, and require courts to directly engage the federalism and separation of powers concerns at Erie’s core.

Keywords: Erie Railroad v. Tompkins, Hanna v. Plumer, Choice of Law, Preemption, Federalism, Separation of Powers, Federal Common Law, Supremacy Clause, Civil Procedure, Rule 83, Charles Clark, Twin Aims, Interpretation, Administrative Law, Constitutional Law, Rules of Decision Act, Jurisdiction

Suggested Citation

Erbsen, Allan, A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law (May 20, 2020). 10 U.C. Irvine L. Rev., Forthcoming, Available at SSRN: https://ssrn.com/abstract=3607678 or http://dx.doi.org/10.2139/ssrn.3607678

Allan Erbsen (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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