Is Erie Our Law?

<div> Under federal diversity jurisdiction, the laws of the states provide the rules of decision. The Erie doctrine provides that the state law rules for federal courts to apply in such cases are not only statute law but also judicial decisions about the common law. This doctrine is based on a syllogism: state laws control; a state court’s common law decisions are state laws; therefore, a state court’s common law decisions control. But a growing chorus of skeptics are undermining the premise that state court decisions are always and everywhere state law. These skeptics point to Georgia, Louisiana, Puerto Rico, and Massachusetts as holdouts from legitimate application of the Erie doctrine. But none of them has thoroughly examined these states’ law. While they attack assumptions in Erie, they make questionable assumptions to the contrary in their own work. This Note fills the gap that Erie’s critics have created. It turns out that Georgia, Louisiana, Puerto Rico, and Massachusetts (and, by implication, other similarly situated jurisdictions, too) do understand their highest courts’ decisions to be their law. These courts all understand themselves as empowered to make—not find—the common law, despite the skeptics’ doubts. </div> <div> <br> </div> <div> Georgia’s unique approach to sister states’ common law does not amount to a rejection of the Erie doctrine. And more direct evidence indicates that the Georgia Supreme Court accepts the Erie doctrine, which it has repeatedly cited with apparent approval. It thus answers federal courts’ certified questions about its common law by telling federal courts what rules are under Georgia law—not general law. Louisiana and Puerto Rico, by contrast, follow the civil law, which seems like a poor fit for Erie. But the Louisiana Supreme Court and the Supreme Court of Puerto Rico similarly answer certified questions by stating their view as authoritative of law for the federal courts to apply. Finally, whether Massachusetts’s very old constitution was originally understood to let its courts make or find common law asks the wrong question, even for originalists and textualists. Erie did not interpret the Massachusetts Constitution; it interpreted the Rules of Decision Act. The laws of the several states are what the several states say they are, not what they said they were centuries ago. The Massachusetts Supreme Judicial Court is the ultimate arbiter of the common law of Massachusetts. It indisputably describes the common law in Holmesian terms. Under the Rules of Decision Act, Erie is thus our law. </div>