Green: Repressing Erie's Myth

Roger Craig Green (Temple Univ. - Law) has posted Repressing Erie's Myth (California Law Review, forthcoming). Here's the abstract:

This Article seeks to alter basic perceptions of Erie v. Tompkins. Everyone knows Erie's requirement that federal courts apply state substantive law in diversity cases. But for some scholars and judges, Erie means much more. The case has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts. My goal is to limit exaggerations of Erie's importance and forestall resultant threats to judicial power. This critique of Erie's myth has three parts: First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism. Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth's broadest consequences. Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson's account of exeutive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue. Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case's shadows.