Craig Green


Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term "constitutional" itself. Erie's cultural significance dropped as the legal process school faded. But it has resurfaced among twenty-first-century conservatives as a pillar of federalism (the "old myth") as well as separation of powers (the "new myth"). Especially given Erie's profound reputation as an iconic precedent, the legal community must not forget how the case has been repeatedly redefined. The decision's twisted intellectual journey is not only an important introduction to twentieth-century legal thought. It is also a warning about widespread inattention to precedential interpretation, as compared with legal interpretation of statutes or constitutions.