Redeeming Erie: A Response to Suzanna Sherry

Abstract

I imagine that those hearty souls who have survived this April Fool’s Day prosecution of the Supreme Court’s “Supreme Mistakes” have now come to grips with the fact that this panel is not a joke—we really have scheduled a civil procedure case for the last panel of the day! Of course, Professor Sherry has made it worth sticking around. In her eloquent and interesting article, she has demonstrated why the Court’s decision in Erie Railroad Co. v. Tompkins deserves its day in the Malibu sun—with the idea being, to quote Justice Brandeis (the author of the Erie decision itself), that “[s]unlight is said to be the best of disinfectants.” Before we disinfect, however, we must come to some conclusion as to what the infection is that ails us. As this is a civil procedure panel, my approach as the appointed defense counsel is to plead confession and avoidance. In so doing, I will admit the facts alleged in Professor Sherry’s declaration, but I will seek to show why the Erie opinion and Justice Brandeis should be discharged from liability. 

My confession and avoidance proceeds in three steps. First, I want to take stock of what can reasonably be said about the Erie decision. Second, I want to grapple with Erie’s lasting effects. Third, I will investigate whether Erie can be redeemed.