Academic

Steinman on Erie

By Lawrence Solum

Adam Steinman (University of Cincinnati - College of Law) has posted What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?) on SSRN.  Here is the abstract:

As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in large part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. Last Term's decision in Bell Atlantic v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a surprisingly straightforward argument that the Erie doctrine requires federal courts to follow state-law standards on summary judgment, class certification, and pleading. This argument has strong support in Supreme Court case-law and the black-letter framework for resolving Erie issues, yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication. Ironically, the 2005 Class Action Fairness Act (CAFA) - whose expansion of federal diversity jurisdiction over high-stakes civil litigation was a major political victory for the defense side - strengthens Erie's preference for state law, because it confirms that procedural disparities between state and federal courts cause precisely the kind of forum-shopping and inequitable treatment that Erie aims to prohibit. Because Erie is likely to play a critical role in the politically-charged arena of contemporary litigation, this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years. It proposes a theory that reconciles the reasoning of Justice Brandeis's Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally. This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come.

I read this earlier & just got off the phone with Steinman after a long talk.  Fascinating article & highly recommended.  This is very rich.  They key insight is Steinman's recognition that the rationale of Gaspareni extends to cases in which two conditions are met: (1) there is a substance-effecting difference between state and federal law, and (2) the federal rule of civil procedure underdetermines the outcome and hence requires "construction" (as opposed to "interpretation") in the technical sense.  Very cool.  The more controversial implication would be that some federal rules may violate 28 USC Sec. 2072(b) if they are substance affecting.

Steinman doesn't offer a complete theory of the conditions for a rule having validating substantive effects.  I have suggested that one possibility is that the rule would affect primary conduct ex ante from the perspective of the parties before the dispute arose.  If you are interested, my general theory of the line between substance and procedure can be found in Part II of :

Procedural Justice, 78 So.Cal. L. Rev.182 (2004)

If you are interested in procedure, read Steinman!

Full post as published by Legal Theory Blog on April 15, 2008 (boomark / email).