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Monday, September 17, 2012

The Erie Doctrine--What does it mean to you?

As I am just a few weeks away from putting my civil procedure first years through the Erie right of passage, my thoughts have been on what Erie means.  Just the other day, Harlan Cohen posted a fabulous new piece on "International Law's Erie Moment."  I too have tried to peer into Erie hoping to construct some relevance for transnational litigation.  As part of that research, it occurred to me that Erie is perhaps a Rorschach test.  Do we look at the case and see what we want to see--federalism, positivism, a remonstrance against forum shopping, etc.  Surprisingly, even though the continuing relevance for Erie to scholars is plain, it is less certain for practitioners, who rarely face an unguided Erie question.  In light of this, I wanted to pose two questions:

First, is Erie a Rorschach test?  If so, what do you see it as?

Second, what do you tell your students when they ask about Erie's continuing relevance?  Is it just theoretical/historical or practical?

Posted by Trey Childress on September 17, 2012 at 12:54 PM | Permalink


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I actually had a case turn in part on an unguided Erie issue once.

In light of these facts -- (1) it doesn't come up much very often in litigation, (2) the basic idea of applying state substantive law and federal procedure is pretty simple, (3) the recent cases (Semtek, Gasperini, Shady Grove) are increasingly complex, and (4) most first-year Civ Pro classes are now 3-4 credits instead of 6 -- I am toying with the conclusion that only the basic holding of Erie itself belongs in the first year, with the rest put off to Fed Courts.

Posted by: Jennifer Hendricks | Sep 17, 2012 4:42:52 PM

My observation while supervising federal-court interns in past years is that, as often as not, lawyers misunderstand Erie and make errant arguments. I tell my procedure students that the greatest value in studying the Erie doctrine may be to recognize its misuse (e.g., when lawyers rely on state-court standards for summary judgment in diversity actions). That said, I tend to agree that the doctrine might be better examined in a Federal Courts course, especially when we are have but four hours to teach procedure to first-year students.

Posted by: Michael Finch | Sep 17, 2012 9:47:57 PM

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