Virginia Law Review Publishes Article on SCOTUS’ Recent Erie Decisions

The Virginia Law Review recently published an article by Professors Earl Dudley Jr. and George Rutherglen entitled Deforming the Federal Rules: An Essay on What’s Wrong With the Recent Erie Decisions, 92 Va. L.R. 707 (2006). Here is the Introduction:

The Supreme Court's most recent decisions under the Erie doctrine seem to lose track of the constitutional principles underlying that doctrine in a maze of procedural detail. From "one of the modern cornerstones of our federalism," Erie apparently has been demoted to the role of an esoteric procedural technicality, one whose true meaning is hard to discern and whose application is impossible to predict. The deceptively simple essence of Erie is that in our federal system, state law is paramount unless and until displaced by some valid piece of federal law. The main area of difficulty in applying the Erie doctrine has involved potential clashes between state law and the Federal Rules of Civil Procedure.

In Gasperini v. Center for Humanities, Inc., the Court held that a state statute providing for enhanced appellate review of jury verdicts must be followed by federal trial courts (but not federal courts of appeal) in diversity cases. This decision creates a rule that is a pastiche of federal and state law, but neither the one nor the other. Through such ad hoc lawmaking, the decision almost turns the Erie doctrine on its head by creating "'a transcendental body of law outside of any particular State but obligatory within it."' In Semtek International Inc. v. Lockheed Martin Corp., the Court held that a dismissal that "operates as an adjudication upon the merits" nevertheless does not preclude a subsequent action in a different forum on the same claim. We are left to wonder what kind of judgment is necessary to bring litigation to a close.

These decisions are puzzling and for that reason have attracted a chorus of academic criticism. Yet decisions so complex and counterintuitive demand explanation as much as criticism, and this Essay will seek to explain how the Supreme Court has reached this impasse in applying and expounding the Erie doctrine. Part I will locate the initial problem in the unwonted complexity of the Court's holdings. Convoluted legal doctrine may be the natural consequence of hard-fought constitutional controversies, but the principles underlying the Erie doctrine should have been long settled by now. Debates over Erie issues hardly elicit the same passionate intensity as controversies over abortion, affirmative action, sexual freedom, or capital punishment. In Gasperini and Semtek, the Court could have reached a better decision in each case by the simple expedient of directly confronting the choice whether to give full effect to a Federal Rule of Civil Procedure, and if not, declaring it partially or wholly invalid. Part II will offer an explanation of why the Court did not take this course. There are three components to this explanation: first, implicit or explicit doubts about the scope and validity of the Federal Rules; second, a tendency to give the Federal Rules an artificially narrow interpretation to avoid perceived conflicts with state law; and third, a resort to case-by-case determinations as the dominant means of resolving questions under the Erie doctrine when a federal rule is claimed to infringe upon a state substantive right. This Essay will conclude with some reflections on the consequences of these decisions for the stability of the Federal Rules and their ability "to secure the just, speedy, and inexpensive determination of every action."