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Sunday, July 19, 2009

To Erie or Not To Erie?

I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching.

As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include?

The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice Brandeis's opinion is as important for why it might be wrong on the constitutional issues as it is for the result it produces.  And on a deeper level (and what's Federal Courts but for a whole bunch of deeper levels), Erie raises a series of interrelated and fascinating questions about the lawmaking powers of both state and federal courts (and Congress's role vis-a-vis the latter). Lastly, Erie is a great segue into federal common law in general, and the units on implied statutory and constitutional causes of action in particular.  Without Erie, those units often seem a strange and sharp break from what we've been doing up to that point in the semester.

But for as interesting as Erie is, there are at least as many reasons to leave it out: First, virtually all of my students will have encountered it in their Civil Procedure coursework as a 1L (where it arguably belongs, since it also profoundly affects tactical choices parties make in civil litigation).  Second, to do Erie "right" means also doing its successor cases (especially Hanna v. Plumer), and may also require discussion of its forerunners, especially Swift v. Tyson and Black and White Taxicab... And third, my syllabus is already quite crowded, and so the more I add about Erie, the more I have to cut from elsewhere.

I know this is a Federal Courts-specific question, but I'd love to hear what y'all think... In general, does it make sense to go back over cases like Erie in upper-level courses? Specifically, should Erie be part of the Federal Courts canon at a school where it's covered in Civil Procedure?

Posted by Steve Vladeck on July 19, 2009 at 04:49 PM in Civil Procedure, Steve Vladeck, Teaching Law | Permalink


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Hi Steve--

I teach Erie in Civil Procedure, but struggle to do so because of the limited number of credits awarded. I have an additional reason to teach Erie. The wide span of cases, from Swift v. Tyson to Erie itself to York to Hanna and beyond allow me to introduce students to different perspectives in jurisprudence and legal history as well as the federalism issues. I find that in my law school, the students get very little exposure to these concepts. I think it is sad that many law students graduate knowing little or nothing about formalism, legal realism, and legal process/pragmatism and the judicial figures associated with them. Good luck with your decision on this!
Best, Eileen Scallen

Posted by: Eileen Scallen | Jul 21, 2009 7:59:28 PM

Well, it depends on how and why you teach it. From the perspective of a practicing lawyer who is constantly dealing with Erie problems, one of the most interesting questions we face is the interaction of federal court interpretations of state law with interpretations made by the state courts themselves. In essence, how are state courts affected by federal interpretations of unclear questions of state law? Is deference given to interpretations of state law by federal district courts, and if so, at what level? And what of the interaction of the Erie doctrine with the expanded jurisdiction created by the Class Action Fairness Act, which has resulted in federal courts being forced to interpret -- and in many cases make -- state law on complex questions.

On balance, I would teach Erie focusing on these questions because they address the relationship between state and federal courts -- and because these issues (which are very important to actual multi-state litigation) receive little treatment elsewhere in most curricula.

Posted by: Mark | Jul 21, 2009 4:59:33 PM

I studied Erie in a separate course on jurisdiction and conflicts. Our civil procedure course, because the jurisdiction and conflicts course existed and was considered to be a "non-requirement requirement", gave jurisdiction and conflicts generally, and Erie in particular, very short shrift (a couple of half page footnotes in the casebook, maybe). Your mileage may vary. If all of your students studied it in Civil Procedure, it probably shouldn't be repeated in detail. In an ideal world, everyone teaching course where it could be taught would develop a united front on where to draw the lines for practicality's sake. But, an ideal world wouldn't need lawyers either.

On the other hand, if you are serving Erie as a garnish instead of an entree, it is more defensible to make tangential reference to it in connection to other lines of cases without the build up and follow up cases that you would include in a direct treatment of the doctrine. Law is not Euclidian geometry. It is not essential that every legal principle be derived from first principals and ultimate sources and developed to its logical conclusion. While as a general rule showing is a better way to communicate than telling, a little narration can go a long way, especially once a case becomes a doctrine instead of a mere precedent, as in the case of Erie. It is important for people who are to think like lawyers to see a few examples of how precedents can become doctrines. It is not necessary for lawyers to know the etimology of every single doctrine.

Better to quickly state the general rule and develop the exceptions. The general rule is easy to find when one is out there doing legal research; it is cited everywhere. The exceptions are often hard to find when you don't know where to look for them.

One way to plunge into the subject, tangentially referencing the continued relevance of Erie concepts without rooting out the source cases themselves at length, might be to compare the pertinent parts of the recent U.S. Supreme Court cases on punitive damages in and out of admiralty law, and then to pull a case on the "reverse-Erie" doctrine in state court admiralty cases simply to illustrate that the odd beast of federal common law which is applicable in state courts, notwithstanding state common law, exists.

While the leap from Swift to Erie is revelatory for what it says about positive law, legal theory and the philosophy of law, one doesn't need to know all that to gleen its practice importance now as a Federal Courts practioner. In the same way, while the rules that flowed from the Slaughter House cases (14th Amendment privileges and immunities are a dead letter) and Plessy (separate but equal is constitutional) are important, undue focus on the details of those cases can actual undermine understanding of what those cases came to mean.

Posted by: ohwilleke | Jul 20, 2009 6:58:09 PM

It seems to me that you're asking a question of coverage that should be driven by your goals for the course. What are the objectives you have laid out for your Federal Courts course? What should students walk out the door knowing or being able to do? If teaching Erie is the best way to accomplish one or more of your goals and/or hone one or more of your objectives, then include it. If not, don't.

Posted by: anon | Jul 20, 2009 1:41:56 PM

Steve, my perspective as a recent law grad is that generally some overlap is probably a good thing. I only took the jurisdiction half of Fed Cts, and Erie didn't come up (we also did not do it in Conflicts--it was mentioned, of course, but we focused on how procedural-substantive distinctions are often different in conflicts situations), so no opinion on that particular case. But, e.g., we did Burger King in Civ Pro and Conflicts, Lujan in Con Law and Fed Jur, Morrison in Con Law and Admin, certain torts and property cases in some environmental law classes, Chevron in Admin and Environmental Law, and the like.

This definitely helped me to learn the material much better than I would have if repetition had been avoided. (And I was a good student at a good school, so I don't necessarily think a generalization like "students need repetition at Harvard but not Suffolk" would fit here.) I think it might be easy for law professors to overestimate how much students really take away from their first exposure to a given case or line of cases because the professor has seen the material (and the context in which it operates) so many more times.

Posted by: Joe (Accidental Blogger) | Jul 20, 2009 12:06:34 PM

Slightly off topic, but a version of Lou's comment is the subject of an essay I am working on for SLU's teaching issue. I argue for a two-course sequence between Fed Courts and Civil Rights, in which all s. 1983 stuff is pulled from Fed Courts (except to the extent it underlies some issues, such as Younger) and put into the solo course. This minimizes the repetition or exposes them to repeat issues (such as abstention or 11th Amendment) only in the narrower s. 1983 context.

Posted by: Howard Wasserman | Jul 20, 2009 11:04:06 AM

Hi Steve,

I face the same question annually. I weigh against including Erie in Fed Courts. All your points ring true. The only other piece I would add is: Diversity Jurisdiction is a smaller set, statistically, of the federal court docket. This numerical basis can justify your skipping the doctrine in lieu of an mere introduction in Civ Pro.

This all brings up a bigger question for me. I have a colleague in commercial law who has re-worked that curriculum so that the courses are sequential and not overlapping. I wish we had a similar sequential structure for other courses. For example, about 1/3 of my federal courts' students will have done the 11th Amendment in Con Law, while other have not. Some will have done extensive Erie in Civ Pro, others not. Etc etc etc. It would be nice to have, in each school, at least a rough-and-ready sequence to avoid massive duplication in upper-division courses plus open up other areas for discussion because the instructor can be confident that everyone walking in has reviewed Erie (or what have you).

Posted by: Lumen Mulligan | Jul 20, 2009 10:18:16 AM

Thanks Sam -- I hadn't thought about Conflicts, although given that I can't count on the overlap there to the same degree that I can count on the students having taken Civil Procedure, that cuts against worrying too much about the (surely substantial) coverage it (or at least Klaxon) gets...

With regard to the other commenters, it's not so much about _how_ to teach Erie (a subject on which many will surely disagree) as it is about _whether_ to devote the necessary time (at least two classes, near as I can figure) to something covered in other classes, when so little of what I teach the rest of the semester is covered in anything other than the most specialized upper-level electives (e.g., post-conviction remedies; Section 1983; etc.). I guess it's just a cost-benefit issue: What would I use those two classes for otherwise, and which is more important?

Posted by: Steve Vladeck | Jul 19, 2009 9:04:10 PM

Hi Steve. Having not yet had the pleasure of teaching Fed Cts, I have no specific thoughts on the precise question you've posed. I would just add that, in addition to the coverage it receives in Civ Pro (which, at least in my class, is pretty substantial if not quite Nelson-esque), Erie often gets taught in Conflicts of Law. Of course, a good case can be made for coverage in all three contexts because the emphasis will undoubtedly vary and because the material is complex enough to warrant repeated exposure. But to the extent that there is enrollment overlap between Conflicts and Fed Cts, it might be worth thinking about the potential for Erie fatigue.

Posted by: Sam Jordan | Jul 19, 2009 8:50:35 PM

In fact, here's the list of Erie-related cases (that I can find through a quick scan of my notes) that we covered in CivPro with Professor Nelson:
Swift v. Tyson
Guaranty Trust v. York
Hanna v. Plumer
Black & White Taxicab
Ragan v. Merchants Transfer & Warehouse Co.
Walker v. Armco Steel Corp.
And on the related choice-of-law and ascertaining the content of state law questions
Van Dusen v. Barrack
Mason v. American Emery Wheel Works

I plan on taking FedCourts with him as well during my 3L year, but I'm not sure if he covers Erie in that class as well. My shot-in-the-dark guess would be that he doesn't teach it on its own terms, but that Erie will definitely come up and he will expect us to know it and apply it.

Posted by: UVA 2L | Jul 19, 2009 7:31:57 PM

Depends on how much is in Civ Pro. Gotta have Klaxon between the two of them.

Posted by: Chris | Jul 19, 2009 7:24:39 PM

Well, we covered Swift through Erie, and Erie's subsequent history (i.e., Hanna) pretty thoroughly in Civil Procedure (one semester long here at UVA) with Caleb Nelson. Then again, it's Caleb Nelson, and he teaches about 150% to 200% more material in greater detail than any other professor at Virginia Law, so I'm not sure how representative this example is.

Posted by: UVA 2L | Jul 19, 2009 7:16:37 PM

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