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76 Tex. L. Rev. 1637 (1997-1998)
Some Thoughts on the State of Erie after Gasperini

handle is hein.journals/tlr76 and id is 1655 raw text is: Some Thoughts on the State of Erie After Gasperini
Richard D. Freer*
We have known since Hanna v. Plumer' that what we usually refer
to as the Erie Doctrine2 actually consists of two distinct parts. First, if
the Constitution or Congress directs the federal courts to apply federal law,
federal law governs.3 This result is dictated by the Supremacy Clause4
and displaces state law even on matters of substance.' I refer to this as the
Hanna prong of the Erie Doctrine. Second, if there is no federal constitu-
tional or legislative directive on point, the vertical choice of law decision
is made under the Rules of Decision Act (RDA).6 Stated very
generally, this analysis, which was the focus of Erie itself, assesses
whether an issue involves a matter of substance (as to which state law must
govern) or procedure (as to which federal law may govern). I refer to this
as the RDA prong of the Erie Doctrine.
While this bifurcation is clear, much of the rest of the Erie Doctrine
is not. In particular, three issues have vexed lower courts in the generation
since Hanna. First, how does one decide whether a case falls under the
Hanna prong? At bottom, this is a question of constitutional and statutory
interpretation.7 Generally, the Court has said, at least with regard to the
* Robert Howell Hall Professor of Law, Emory University. I am grateful to Bill Ferguson,
Wendy Perdue, Robert Schapiro, and Tom Arthur for helpful comments and discussion.
1. 380 U.S. 460 (1965). The classic discussion of the case is John Hart Ely, The Irrepressible
Myth of Erie, 87 HARv. L. REv. 693 (1974).
2. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
3. See Hanna, 380 U.S. at 471 (stating that a court can only decline to apply a federal rule if the
rule in question transgresses ... the terms of the Enabling Act [or] constitutional restrictions).
4. U.S. CoNsT. art. VI, § 2.
5. Section 34 of the Judiciary Act of 1789 requires this result; it provides that the laws of the
several states, except where the constitution, treaties, or statutes shall otherwise provide, shall be
regarded as the rules of decision in trials at common law in the courts of the United States in cases
where they apply. Judiciary Act of 1789, ch. 19, 1 Stat. 73, 92 (1789) (codified as amended at 28
U.S.C. § 1652 (1994)). .
PRACTICE AND PROCEDURE § 4504, at 47 (2d ed. 1996) (summarizing Hanna as holding that when
there is no federal rule a federal court must decide whether to apply a state law according to the Rules
of Decision Act guided by 'the twin aims' of the Erie case) [hereinafter WRIGHT, MILLER & COOPER].
7. If a federal constitutional provision applies, it governs the case. WRIGHT, MILLER & COOPER,
supra note 6, § 4501, at 2 (asserting that the core of the Erie Doctrine requires federal courts to apply
state law except when the matter before the court is governed by the United States Constitution, an

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