Richard M. Re

Here’s my new article with Jack Goldsmith, “General Law Revivalism and the Problem of 1938.” yalelawjournal.org/pdf/136-1…

My new article with Jack Goldsmith, “General Law Revivalism and the Problem of 1938,” is now out in the Yale Law Journal. (Link provided in the comment below.) We argue that recent academic efforts to revive the pre-Erie “general law” overlook how dysfunctional the general law regime had become before Erie and fail to appreciate the extent to which that regime is incompatible with the post-Erie constitutional order. We also explain how Erie and its progeny created what we term the “Erie algorithm,” which requires federal courts to convert pre-Erie rules premised on one understanding of law and federal judicial power into rules premised on different understandings of both, almost always with a different meaning and legal status than prevailed at the Founding and in the nineteenth century. As we document, this algorithm undergirds nearly every aspect of contemporary federal courts doctrine. @jacklgoldsmith, @YaleLJournal