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Normalizing Erie

dc.contributor.authorSherry, Suzanna
dc.date.accessioned2017-10-19T18:08:33Z
dc.date.available2017-10-19T18:08:33Z
dc.date.issued2016
dc.identifier.citation69 Vand. L. Rev. 1161 (2016)en_US
dc.identifier.urihttp://hdl.handle.net/1803/8462
dc.descriptionarticle published in law review.en_US
dc.description.abstractThis Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines – such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special “enclaves” of federal common law – courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Erie doctrine, the Supreme Court has mandated exactly the opposite approach: State law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous literature on Erie has failed to recognize that the Erie doctrine is a response to the same problem addressed by ordinary federalism doctrines: In the absence of an explicit congressional or constitutional directive, how should courts sitting in diversity jurisdiction respond to clashes between state law and unarticulated (that is, uncodified) federal interests? This Article explains that Erie’s unconventional answer to the problem of unarticulated federal interests is a fluke of history. Pivotal decisions about the Erie doctrine, unlike pivotal decisions about ordinary federalism doctrines, occurred at a time of heightened concern about judicial overreaching. Those concerns distorted the Court’s decision-making, and Erie’s response to the common federalism question consequently diverged from ordinary federalism. Recognizing and putting aside the distorting influence clears a path to re-envisioning the doctrine and replacing the current Erie analysis with the familiar and established framework of ordinary federalism. Doing so simultaneously brings Erie back into line with ordinary federalism, increases judicial transparency, and resolves tensions within the existing Erie doctrine.en_US
dc.format.extent1 PDF (72 pages)en_US
dc.format.mimetypeapplication/pdf
dc.language.isoen_USen_US
dc.publisherVanderbilt Law Reviewen_US
dc.subject.lcshConstitutional law -- United Statesen_US
dc.titleNormalizing Erieen_US
dc.typeArticleen_US
dc.identifier.ssrn-urihttps://ssrn.com/abstract=2754139


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