Joseph R. Oliveri · August 2008
76 GEO. WASH. L. REV. 1372 (2008)
As central as the Erie doctrine may be to law school curricula and choice-of-law analyses, however, it represents only part of a federalism analysis; indeed, one scholar has likened traditional Erie doctrine to a false front on a movie set. The other part of the analysis is the extent to which federal law is applicable in state courts, which is explained by a doctrine known as “converse-Erie.”
Despite the significance of the converse-Erie doctrine, it has gone largely and surprisingly uncommented upon, and when it has been discussed it has been largely mischaracterized or misapplied. Moreover, many commentators limit their analyses of converse-Erie to discussions of preemption, the Supremacy Clause, and the related but distinct doctrine of Testa v. Katt. Although preemption and the Supremacy Clause provide a natural and helpful starting point for converse-Erie analysis, these doctrines typically focus on the displacement of state substantive law with federal substantive law. Converse-Erie, however, addresses a wholly distinct question: the extent to which state courts, in the adjudication of substantive federal rights, must use federal procedures in lieu of state procedures.
Of course, if federal law mandates that state courts employ federal procedures in the adjudication of a given federal right, the analysis is simple and the Supremacy Clause dictates that such procedures be used. The more important and less clear situation is that in which federal law is silent as to the procedures to be used in the adjudication of a federal right. In such a case, the question arises as to which procedures—federal or state—a state court must use. Perhaps even more important is the question of which procedures the court should use. The case law addressing this question is woefully unclear, and two broad schools of thought have developed. The first, as articulated by Professor Martin H. Redish and Steven G. Sklaver, argues that there should be “a strong presumption in favor of the use of federal procedures when a state court is called upon to adjudicate a federal cause of action” to “assure the attainment of federal supremacy in the enforcement and protection of federal claims.” The second takes as its starting point the longstanding general rule that “federal law takes the state courts as it finds them” and posits that “state courts are not obligated to follow federal procedural rules so long as the state procedures do not unduly burden the federal rights.” Accordingly, supporters of this approach would engage in an Erie-like balancing of state and federal interests to determine the applicable law.
The debate over which approach to use in the converse-Erie context assumes a tremendous importance today, with the rise of the administrative and regulatory state and the proliferation of federal rights and causes of action, many of which are ultimately adjudicated in state courts. The recent U.S. Supreme Court case of Schaffer v. Weast is a perfect example of a situation in which the converse-Erie doctrine is directly applicable, and it is particularly noteworthy because the Court applied a default federal procedural rule without even considering the converse-Erie doctrine or the considerations that underlie it. Moreover, the 2005 decision by the Eleventh Circuit in Legal Environmental Assistance Foundation, Inc. v. U.S. EPA demonstrates that converse-Erie concerns are not limited to actions in state courts, but must be confronted by federal courts as well.
This Essay examines the oft-neglected converse-Erie doctrine, ultimately concluding that in order to further the principles of cooperative federalism—“Our Federalism”—and comity that underlie our constitutional system, courts must recognize situations that call for converse-Erie analysis and apply the doctrine in a manner reflective of the limited role of the federal government. Accordingly, federal procedural rules should apply to federal programs delegated to and implemented by state agencies only when absolutely necessary to avoid undermining a strong federal policy, and in the absence of a specific mandate or such a finding, courts should apply state law to fill the interstices of federal statutory schemes. In conducting their analyses, courts should employ Erie-like balancing to determine when the application of federal procedures is necessary.
