Wednesday, July 23, 2008

Prof. Doernberg Posts Erie Article on SSRN

Prof. Donald L. Doernberg has recently posted an Article entitled The Unseen Track of 'Erie Railroad': Why History and Jurisprudence Suggest a More Straightforward Form of 'Erie' Analysis on SSRN. Here is the Abstract:

In the seventy years since the Court announced it, the 'Erie' doctrine and the vertical choice-of-law inquiry that it attempts to control have become almost hopelessly complex. This article suggests a different way to characterize the vertical choice-of-law problem that explains all of the previous Erie cases and will help to predict the result of future cases accurately. The vertical choice-of-law process becomes more understandable if one views it through the lens of government interest analysis, a common conflict-of-laws technique. There are some areas, such as torts (as in 'Erie' itself), where the Court has said that the Constitution does not permit there to be a federal interest. In others, federal interests find expression in constitutional, statutory or regulatory provisions, each of which overcomes conflicting state law because of supremacy. Only when there is no regulatory material is the Court faced with what Chief Justice Warren called the relatively unguided 'Erie' choice, and in those cases, the Court has used a balancing approach since its decision in Byrd, which was no more than a government interest analysis without the label. It turns out that all Erie problems are amenable to this approach.

A full-text version of the Article may be downloaded by visiting


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