This paper explores the permission that the Erie decision granted to federal courts to inject themselves into the dynamics of state law change. Following Erie’s mandate, a federal court can sometimes clearly discern the content of state law from a state statute or a recent state Supreme Court decision. Other times, state court precedent is either nonexistent or old and contrary to trends elsewhere in United States law. In these latter circumstances, federal courts are forced to decipher the current content of state law. In these circumstances, federal courts must sometimes use weak or nonexistent evidence to guide their analysis of state law. Through that process of divining state law, federal courts are given an opportunity to make, or at least strongly influence, state law development. This opportunity makes it possible often for federal courts to inject their own views and preferences into decisions on the content of state law. The result can be remarkable—with federal courts changing the course of state law development. The effect on state law may be an unanticipated result of the Erie decision. This paper explores whether the process of anticipating and ultimately changing the content of state law is an appropriate and salutary result of the venerable decision, known as Erie R.R. v. Tompkins.
Little, Laura E.
"Erie's Unintended Consequence: Federal Courts Creating State Law,"
Akron Law Review: Vol. 52:
2, Article 4.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol52/iss2/4