A Formstone of our Federalism: the Erie/Hanna Doctrine & Casebook Law Reform
59 Miami Law Review 475 (2005).
The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it right up until then, and proposed a minimally disruptive cure for straightening out the case law confusion then in effect. Most academic commentators signed off on Ely's analysis almost immediately, acknowledging the power of his analytical framework even when they disagreed with his application of it to particular cases. And judges cited to his approach routinely, sometimes almost reverentially, as if before a shrine of our federalism, even when they simultaneously misapplied its central tenets. Ely even held out hope that the Supreme Court would understand the full implications of the interpretive project it had set in motion, and take the first available opportunity to complete its analysis. It must have been a very optimistic time.
But then the casebook authors got hold of the project, and all bets were off. Many of these authors, it turned out, would not have decided the Erie/Hanna cases in the same way as the Court. They objected most to the decision to replace the sensible moderation of the balancing test of Byrd v. Blue Ridge with the more difficult to understand refined outcome determination test of Hanna v. Plumer (some even deny that this happened), and to the Court's failure to ground the doctrine more explicitly in the Tenth Amendment of the Constitution, as a protection of a fixed enclave of state power forever off limits to federal regulation, rather than a shifting enclave of statutorily protected state residuary power left over after the Constitution's grant of federal enumerated power was fully identified. Disagreement over the meaning of case law among academics is common, of course, but what makes the Erie/Hanna dispute unusual is that casebook authors acknowledge the persuasiveness of Ely's analysis at the same time that they fail to follow it in organizing the treatment of the doctrine in their books.
Students learn one or another casebook version of Erie/Hanna of course, since casebooks are one of a student's primary sources of information about the doctrine, and when they became law clerks, as ultimately some must, they draft Erie/Hanna opinions based on their slightly-off-track understandings because these are the only understandings they have. A principal consequence of this exercise in what one might think of as casebook law reform, is a major doctrinal disconnect between the upper and lower branches of the federal judicial system, with the Supreme Court on one page (pretty much), and the lower federal courts on several others. As if in an extended telephone game, the Erie/Hanna doctrine reported back by the lower federal courts differs considerably from the one sent out by the Supreme Court, Ely's efforts to provide an interpretive algorithm notwithstanding.
In this article I examine this episode of casebook law reform to figure out how and why it occurs, and whether anything can or should be done about it. I do not doubt that what I say about Erie/Hanna also could be said about other complicated statutory and constitutional doctrines. This is not a unique instance of casebook law reform, just an interesting one. Section II of the article describes the development of the doctrine, principally as it is articulated in the four well known Supreme Court cases with which it is usually associated, and shows how the cases are stages in a common project, successive drafts of the same document if you will, which build on and improve one another more than they attempt to start the doctrine over on a clean slate. Section III describes how civil procedure casebooks present the doctrine, both how they edit the Supreme Court cases for inclusion, and how they suggest that the cases should be interpreted (in Teacher's Manuals and in Notes and Comments following the cases). Finally, Section IV asks why it matters that casebook treatments of Erie/Hanna differ from one another, and from the Supreme Court's views, and offers some modest suggestions for getting Erie/Hanna instruction back on track.
59 Miami Law Review 475 (2005).