Erie and Preemption: Killing One Bird with Two Stones

December 2015
Indiana Law Journal;Fall2015, Vol. 90 Issue 4, p1591
Academic Journal
The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie as a preemption doctrine. The analysis demonstrates how and why Erie constitutes a species of preemption. It then shows the appropriateness of preemption analysis to Erie problems whether one is dealing with a federal rule of civil procedure or with federal common law. Because preemption underlies both wings of the Erie doctrine, the standard account's bifurcated approach is wrong. Moreover, employing doctrines developed in other preemption contexts explains the results of the Supreme Court's Erie cases better than the Court's own standard account. By making explicit the linkage between Erie and preemption, one can clarify the analysis and better predict and explain the results of the Supreme Court's cases.


Related Articles

  • "A Formstone of Our Federalism": The Erie/Hanna Doctrine & Casebook Law Reform. Condlin, Robert J. // University of Miami Law Review;Jul2005, Vol. 59 Issue 4, p475 

    The article presents the author's examination of a doctrine and casebook law reform in the U.S. concerning the cases Erie R.R. v. Tompkins and Hanna v. Plumer. The development of the Erie/Hanna doctrine is described. The author also describes the manner wherein several of the widely adopted and...

  • DECONSTRUCTING WYETH V. LEVINE: THE NEW LIMITS ON IMPLIED CONFLICT PREEMPTION. Vladeck, David C. // Case Western Reserve Law Review;Summer2009, Vol. 59 Issue 4, p883 

    Information about the symposium over the state of the civil justice system in the U.S. before the Supreme Court over the doctrine of federal preemption in the case of "Wyeth v. Levine" is presented. Topics discussed include the Court's jurisprudence on the regulatory implied conflict in...

  • ILLUMINATING SHADY GROVE: A GENERAL APPROACH TO RESOLVING ERIE PROBLEMS. Oakley, John B. // Creighton Law Review;Dec2010, Vol. 44 Issue 1, p79 

    The article discusses the approach on resolving the Erie Railroad Co. v. Tompkins case problem, where claims are based on state than federal law under federal courts in the U.S. It notes that the federal power was applied over procedure, allowing the decision for the Erie case to take effect on...

  • Erie's Constitutional Source. Clark, Bradford R. // California Law Review;Fall2007, Vol. 95 Issue 5, p1289 

    The article describes the U.S. Supreme Court's decisions in Swift v. Tyson and Erie Railroad Co. v. Tompkins and the ongoing debate about the precise constitutional rationale underlying Erie. It is noted that the constitutional rationale of Erie case has remained elusive for three decades. The...

  • DE FACTO SUPREMACY: SUPREME COURT CONTROL OF STATE COMMERCIAL LAW. Hurst, J. Benton // Virginia Law Review;May2012, Vol. 98 Issue 3, p691 

    The article focuses the U.S. Supreme Court supremacy to control the state commercial law. It discusses the U.S. Supreme Court case of Erie Railroad Co. v. Tompkin, wherein the federal general common law was held unconstitutional. It also discusses the tendency of state high courts on issues of...

  • "Standing" in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry. Koppel, Glenn S. // Pace Law Review;Spring2014, Vol. 34 Issue 2, p631 

    The article discusses U.S. federal legal standing law in relation to the U.S. Supreme Court's ruling in the 1938 case Erie Railroad v. Tompkins which deals with American constitutional law and the establishment of the Erie Doctrine, focusing on U.S. federalism, California state laws, and the...

  • HORIZONTAL ERIE AND THE PRESUMPTION OF FORUM LAW. Green, Michael Steven // Michigan Law Review;May2011, Vol. 109 Issue 7, p1237 

    According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state's supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister...

  • STRANGE BEDFELLOWS: THE POLITICS OF PREEMPTION. Mullenix, Linda S. // Case Western Reserve Law Review;Summer2009, Vol. 59 Issue 4, p837 

    The article discusses the resurgence of the doctrine of federal preemption based on the oral argument of the case "Altria Group, Inc. v. Good," and "Wyeth v. Levine." It notes that the preemptions have upheld the expression of state law claims governed by the Medical Devices Amendments Act of...

  • Letters. Fink, Andrew (uncle); Fink, Andrew (nephew) // National Review;5/4/2009, Vol. 61 Issue 8, p2 

    Several letters to the editor are presented in response to articles in previous issues including "The Week" in the April 6, 2009 issue about the U.S. Supreme Court's decision in Wyeth v. Levine and an editors reply to the aforementioned letter.


Read the Article


Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics