Ascertaining the Laws of the Several State: Positivism and Judicial Federalism After Erie

Bradford R. Clark, Ascertaining the Laws of the Several State: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)

Stopped halfway through this lengthy piece. The basic point is that the predictive approach used by federal courts in diversity when there are no state opinions on point raises federalism issues, and thus federal courts should use certification to state supreme courts liberally. There does seem to be some understanding that federal courts are exercising federal power when they sit in diversity.

"If a rule of decision applied in federal court does not constitute a command of the state sovereign, then by default the rule in question is, at least in some sense, a command issued by agents of the federal sovereign. The federal courts' enforcement of such commands appears to contradict a fundamental feature of the constitutional structure recognized in Erie -- namely, that federal courts (which the Constitution places beyond the reach of the political and procedural safeguards of federalism) have 'no power to declare substantive rules of common law applicable in a State.'" (1462-63)

Identifies the constitutional holding of Erie as resting on "mutually reinforcing principles of federalism and separation of powers". (1467)

Because the general common law is, after Erie, just state law, "the precise contours of such law must be fashioned by agents of the state." (1481) But can't we read Erie to say that federal courts sitting in diversity are agents of the state?

Cites Rutherglen for the proposition that federal courts' decisions on "general law" "could be said to make law on behalf of the federal sovereign." (1481-82) But again, I think that implies that Erie didn't change our understanding of how the federal courts act. See immediately preceding paragraph.

"Judicial federalism refers to the lack of constitutional power on the part of the federal courts ... to adopt substantive law applicable in the states." (1482) This is precisely why my argument works -- because if a court rules on a case outside of Congress's authority, it must be "adopting substantive law", and thus violating Erie's conception of judicial federalism.

"Permitting federal courts unilaterally to fashion and apply 'substantive rules of common law applicable to a State' ... would enable federal courts to circumvent the carefully drawn checks and balances that the Constitution establishes to govern the federal government's adoption of 'law applicable in a State.'" (1486) e.g. bicameralism, presentment, state representation in the legislature.

"[F]or the political safeguards of federalism to function as an effective check on the exercise of federal power, the federal government -- including its courts -- must adhere closely to the various constitutional procedures that govern adoption of federal law." (1490)

References

Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671 (1992)

Citing references

Jonathan M. Gutoff, Federal Common Law and Congressional Delegation: A Reconceptualization of Admiralty, 61 U. Pitt. L. Rev. 367 (2000)

Bradford R. Clark, Erie's Constitutional Source, 95 Cal. L. Rev. 1289 (2007)