GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Working

Abstract

The U.S. Supreme Court’s watershed decision in Erie Railroad Co. v. Tompkins is sometimes read to require federal judges hearing claims based on federal diversity jurisdiction to apply state law, essentially as if the case were being decided in a state court. The doctrine therefore appears to create a categorical rule disempowering federal courts from ever departing from state law, despite the Constitution’s grant of federal jurisdiction. However, as the Court’s 2026 Erie case, Berk v. Choy, makes clear, sometimes the Erie analysis is used to empower federal courts to override clear state policy choices embodied in state law simply by deciding that the federal law is “procedural” in nature and therefore not covered by Erie. Accordingly, the Erie doctrine as currently practiced creates two opposing categorical rules, each of which dictates either state or federal law based on factors that are largely independent of the actual federalism interests at play. Meanwhile, some judges and scholars are weaponizing Erie to block federal judges from ever engaging in common law adjudication to recognize individual rights, even with regard to federal constitutional or statutory questions, where state law is not implicated at all.

Thus, both the context and purpose of Erie have clearly been lost. Accordingly, we must go back to first principles to recover the federalist core of diversity jurisdiction itself. Drawing on the insights of legal pluralism scholarship, I argue that, instead of asking if the conflict between federal and state law can somehow be categorized as substantive or procedural, the truly meaningful question is whether or not the application of the federal rule in a diversity case will undermine an important state policy choice or upset settled expectations of those choosing to locate in the state. In addition, Erie has absolutely nothing to say about judicial interpretation of federal law because there are no state interests at stake in such cases.

A pluralist perspective can help provide a coherent approach to both diversity jurisdiction and the Erie doctrine. And although such an approach does not render diversity cases easy, it does offer a useful analytical framework, one that seeks to preserve spaces for both federal and state policies to have voice to the largest degree possible, but where federal courts defer to state law in areas where states have crafted solutions that reflect core policy choices, particularly when those policy choices may have generated reliance interests among individuals and corporations located in the state.

GW Paper Series

2026-40

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