Monday, April 21, 2008

Prof. Green Posts Article on Erie

Professor Craig Green recently posted an Article entitled Erie and Problems of Constitutional Structure: A Response to Professor Clark on SSRN. Here is the Abstract:

Erie has become a lamentably prevalent authority for limiting federal judicial power; I have called this phenomenon Erie's new myth. New-myth advocates often trade on Erie's celebrity and on distaste for Swift v. Tyson's federal general common law. But the new myth sweeps broader than simply rejecting Swift's holding or endorsing Erie's. In fact, new-myth opposition to federal common law applies inherently unstable concepts, resulting in a malleable theory that risks selective and unwarranted expansion.

Bradford Clark's scholarship fits this pattern. One unique feature of Clark's analysis is his claim that the Supremacy Clause, Erie, INS v. Chadha, and the constitutional structure form interrelated limits on federal judicial power. This Essay argues that the first three cannot support Clark's conclusions, but that Clark's reliance on structure needs detailed attention. The term structure has multiple meanings in constitutional law, and Clark's scholarship illustrates structural interpretation's strengths and weaknesses.

Part I challenges Clark's view of the Supremacy Clause as Erie's constitutional source, and considers his arguments' threat to administrative lawmaking. Part II explores Clark's vision of constitutional structure and illustrates how such interpretive methods can incorporate unstated assumptions about how the Constitution should operate. I conclude that, although arguments about constitutional structure are important, such claims merit scrutiny similar to other assertions about constitutional penumbras and ordered liberty.

A full-text version of the article may be downloaded at


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