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August 06, 2018


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A broad view of Erie's restrictive effect is perhaps warranted in some respects, but perhaps there are too many exceptions to make this thesis persuasive.

First, the Restatements. Although perhaps less influential now, certainly these have had major effects, along with Model Statutes and Rules developed by various authorities.

Second, the federal common law. While denying it exists, the federal courts have created it with respect to interpretation and application of federal statutes and rules.

Third, the delegation to the state courts can be seen as a major empowerment of the common law, not a restriction. The fact that our state supreme courts are so lousy is only a reflection of these times -- in nearly every field, stagnation and incompetence rules the day.

Howard Wasserman

I had similar thoughts to Anon, especially as to point # 3--if all Common Law is state law, that should have made state judges more influential, because federal courts must parse state courts in making Erie Guesses.

The expansion of federal law is not only a product of broad preemption, but of the creation of new and broader statutory rights that plaintiffs can use in federal court.

Scott Pruitt Edndowed Chair in Environmental Justice

It's where the rubber meets the road for thousands of PI and insurance lawyers enabling them to pay off law school debt and take their families on vacation. It's about fees, money, United States currency...It represents the day a schmo three bill retail theft lawyer like me refers a sick, sore, and disabled client with multiple fractures and surgeries to my PI buddy who says thank you with my big hunk of third money. MONEY.

Anthony Gaughan

Thanks for your comments, anon and Howard.

I agree entirely with you both that Erie enhanced the power of state court judges, but the key point is it only did so within the borders of the judges' respective states. For example, as a consequence of Erie, New York common law has evolved very differently than Iowa common law, which means that in 2018 what a New York judge says about the common law has very little significance for an Iowa judge facing a common law issue.

That was not the case in 1938 when many state and federal judges thought they were engaged in a common endeavor to interpret a single body of common law.

But as a consequence of Erie, the common law has developed in profoundly different ways in the 50 states, which is why choice of law questions hold such immense importance today. Thus, Erie did not end forum shopping. It just reoriented it from a state versus federal question to a state versus state question.

Erie also created a whole host of new problems, such as the Erie Guess issue (which you point out Howard) as well as the thorny and unresolved procedural issues associated with the Hanna v Plumer and Byrd v Blue Ridge line of cases.

The bottom line is Erie gave rise to so many unintended consequences that I think it would have given the justices on the Hughes Court pause if they could have seen where Erie would lead. But at the same rate I think the Constitution may have mandated no other result (as Brandeis wrote in his opinion).

Thanks again for your comments, anon and Howard!

Scott Pruitt Edndowed Chair in Environmental Justice

Many folks attend law school to earn a living, ie make money, generate fees, income...that sort of thing. Theory is nice, but it won't fill up your tank at the BP so you can get to court in the morning. By only thanking anon and Howard, to the exclusion of me, for their comments is precisely why, in many respects, we have Donald Trump as president. Not much difference between "deplorable" and this...

Anthony Gaughan

My apologies, Scott Pruitt Endowed Chair in Environmental Justice. I should have thanked you for your comments too, and hereby do so.


Again, your statement " the effort to ascertain a universally-applicable, general common law came to an end in the famous 1938 case of Erie Railroad Company v. Tompkins," is belied by the ALI, the Restatements, Model Acts, etc.

Second, the Erie Guess issue to which you allude is mitigated by the certified question procedure.

Having studied forum shopping in various contexts, I also believe it is incorrect to suggest that conflict of state law is a major issue: though, of course, it is an issue, as is the federal/state divide, as you noted.

Finally, the key to understanding your misperceptions, IMHO, is this "That was not the case in 1938 when many state and federal judges thought they were engaged in a common endeavor to interpret a single body of common law."

It was true that in an age where pleading was evolving, civil procedure evolving and tort and contract law were evolving (much more than before or since, I think), there was a thought that simply referring to Blackstone was necessary, but insufficient. Cardozo was paving the way into new understandings of product liability, for example. the word "interpreting" should be perhaps "developing."

Today, the states vary somewhat in the imposition of liability for product defects. However, the notion that there is no effort to synthesize and harmonize is fallacious, again, in my view.

Scott Pruitt Edndowed Chair in Environmental Justice

I feel better now. I was going to call one of those billboards, 1800-411-PAIN or maybe the guy with cowboy hat... You redeemed yourself. I feel like a stable genius now.

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