90 Indiana Law Journal 1591 (2015)
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.
"Erie and Preemption: Killing One Bird with Two Stones,"
Indiana Law Journal: Vol. 90
, Article 5.
Available at: https://www.repository.law.indiana.edu/ilj/vol90/iss4/5