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Article Title

Erie Step Zero

Abstract

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns about unequal treatment based on state citizenship and forum shopping figure most prominently. The first concern, while salient in any diversity of citizenship case, simply has no application in cases in which subject matter jurisdiction is founded upon “arising under” jurisdiction. And the second Erie-derived principle, avoiding forum shopping, while relevant to federal question cases, has a different federalism timbre in diversity cases. In diversity cases, forum shopping for certain substantive rules may deprive state courts of the opportunity to adjudicate claims that involve state law through and through. In jurisdiction founded on a federal question, by contrast, litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts; certain kinds of forum shopping are overtly welcomed, if not encouraged. Thus, this Article shows that Erie applies, but differently, in cases founded on federal question jurisdiction. In so doing, it provides a new framework—what I call, borrowing from administrative law scholarship, “Erie Step Zero”—for considering Erie questions in their properjurisdictional context, ensuring that federal law is not unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented.

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