59 Pages Posted: 19 Aug 2005
Date Written: October 14, 2005
Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding this major problem ubiquitously encountered in our system: every question of law posed to every actor in a system of federalism such as ours is preceded by the choice-of-law problem of whether the legal question is a matter of state or federal law.
This article therefore tries to unearth the doctrine, developing a theory and methodology of reverse-Erie. This doctrine turns out to provide that federal law - be it constitutional, statutory, or common law - will apply in state court pursuant to the Supremacy Clause whenever that federal law preempts state law or, as less frequently acknowledged, prevails by an Erie-like judicial balancing in situations where Constitution and Congress have not chosen. Indeed, it interlocks with and ultimately merges into that megadoctrine also called Erie, which treats the system's overall relationship between state and federal law.
Then, this article tries to explain the overlooked significance of this subject. After the integration of reverse-Erie, Erie comes to form a logical pattern, in which not only the state and federal courts but also all the other institutional and private actors can balance state and federal interests to shape or perceive the optimal relationship of state and federal law in our governmental and legal life. Nevertheless, reverse-Erie has experienced only neglect apparently because it falls between the curricular stools of civil procedure, constitutional law, and federal courts and because scholars tend to come at the subject from doctrinal jumping-off points other than Erie itself.
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