Fordham Law Review
The Erie doctrine is still a minefield. It has long been a source of frustration for scholars and students, and recent case law has exacerbated the troubles. Although other scholars have noted and criticized these developments, this Article explores a deeper systemic problem that remains undeveloped in the literature. In its present form, the Erie doctrine fails to protect any coherent vision of the structural interests that supposedly are at its core—federalism, separation of powers, and equality.
This Article argues that Congress has the power to fix nearly all of these problems. Accordingly, it proposes a novel statute to revamp the Erie doctrine in a way that actually protects important structural interests and also streamlines the doctrine to make it more easily administrable. First, the statute defines states’ federalism interests with greater precision and concomitantly expands federal courts’ power to create rules that are not clearly substantive. Second, it unifies the various strands of the Erie doctrine into a single test that serves that vision of federalism. Finally, drawing on lessons from administrative law, the statute gives federal courts new discretion as to the means by which they may adopt nonsubstantive rules. The result is a simpler and more coherent Erie doctrine.
Alan M. Trammell, Toil and Trouble: How the Erie Doctrine Became Structurally Incoherent (and How Congress Can Fix It), 82 Fordham L. Rev. 3249 (2014).