Legal Commentary

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?