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Towards a Unified Theory of "Reverse-Erie"

A “reverse-Erie” problem arises when a state court is hearing a federal cause of action and confronts a situation in which a state law and a federal law conflict. The term finds its etymological origin in Erie Railroad Co. v. Tompkins, which dealt with the opposite problem of a federal court sitting in diversity confronting a situation where a state law and a federal law conflict.

As Professor Kevin Clermont noted in one of the only in-depth scholarly papers exclusively on reverse-Erie, the topic is “strangely ignored by most scholars” and often “misunderstood, mischaracterized, and misapplied by judges and commentators.”

Although reverse-Erie problems are regularly dealt with at the state court level, they are rarely dealt with at the federal level. Since a reverse-Erie problem, by definition, can arise only in state court, the only federal court that can consider a reverse-Erie problem is the U.S. Supreme Court on a writ of certiorari from a state court of last resort—an infrequent occurrence. Indeed, commentators consider only four reverse-Erie cases to be seminal in the development of the current doctrine.

Given that these four cases were decided decades apart from each other and do not use a consistent methodology, state courts facing reverse-Erie problems are left to resolve the Supreme Court’s ambiguity in this area. The result has been virtual chaos, with state courts approaching reverse-Erie problems with different methodologies that lead to divergent results. This Comment attempts to develop an analytically cogent framework for the treatment of reverse-Erie problems.