Document Type

Working Paper

Publication Date

4-3-2008

SSRN Discipline

Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

As when Erie Railroad Co v Tompkins was decided seventy years ago federal courts today are seen as more favorable to corporate and business interests than many of their statecourt brethren The current situation is due in no small part to federal courts comparatively prodefendant approaches to summary judgment class certification and other procedural issues The Courts decision in Bell Atlantic Corp v Twombly which tilts federal pleading standards in favor of defendants will likely have similar federalism implications This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow statelaw standards on summary judgment class certification and pleading This argument has strong support in Supreme Court caselaw and the blackletter framework for resolving Erie issues yet it would significantly recalibrate the conventional understanding of judicial federalism in civil adjudication Ironically the 2005 Class Action Fairness Act CAFA whose expansion of federal diversity jurisdiction over highstakes civil litigation was a major political victory for the defense sidestrengthens Eries preference for state law because it confirms that procedural disparities between state and federal courts cause precisely the kind of forumshopping and inequitable treatment that Erie aims to prohibit Because Erie is likely to play a critical role in the politicallycharged arena of contemporary litigation this Article also confronts some of the broader conceptual and theoretical problems that have plagued the Erie doctrine during its first seventy years It proposes a theory that reconciles the reasoning of Justice Brandeis Erie opinion with the subsequent evolution of the Erie doctrine and federal judicial power generally This Article thus provides a coherent doctrinal framework for considering the challenges Erie may face in the years to come

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