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A Pox on Both Your Houses

dc.contributor.authorSherry, Suzanna
dc.identifier.citation10 Journal of law, Economics, and Policy 173 (2013)en_US
dc.descriptionarticle published in law journal.en_US
dc.description.abstractAs Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie doctrine and between it and the Federal Rules of Civil Procedure. The Court’s latest Erie decision, Shady Grove, was yet another attempt to separate substance from procedure and navigate the strait between the Rules of Decision Act and the Rules Enabling Act. It was a disaster, in large part because of the internal incoherence of the Erie doctrine itself and its profound incompatibility with the guiding principles of the Federal Rules of Civil Procedure. Shady Grove thus brings to the forefront the need for a normative choice between federal procedural uniformity and transsubstantivity on the one hand, and state authority on the other. I suggest that instead of filtering that normative choice through the convoluted and self-contradictory Erie doctrine, judges should confront it directly as they do in other contexts (including most prominently preemption doctrine). This suggestion in turn has implications far beyond the narrow Shady Grove issue.en_US
dc.format.extent1 PDF (32 pages)en_US
dc.publisherJournal of law, Economics and Policyen_US
dc.subject.lcshCivil procedure -- United Statesen_US
dc.titleA Pox on Both Your Housesen_US
dc.title.alternativeWhy the Court Can't Fix the ERIE Doctrineen_US

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