Essay Question 7 from the 2012 CivPro Exam
Erieblogging: Day Six

Erieblogging: Day Five

In honor of the 75th anniversary of Erie Railroad Co. v. Tompkins, I’m posting an un- or underexplored question about Erie each day for the whole month.

Today’s question: A puzzle about Erie is that Brandeis says that federal courts must respect state supreme court decisions concerning the state’s common law, instead of treating the issue as one of state law, to be answered on a state-by-state basis. A similar puzzle arises when there are no state supreme court decisions on point. The Supreme Court has suggested that a federal court should predict what the state supreme court would do. But isn’t that too a question of state law about which the relevant state supreme court should have the final say?

For example, when interpreting unsettled sister state law, New York state courts do not predict what the sister state supreme court would do but instead presume that sister state law is the same as their own. Perhaps if the New York Court of Appeals were asked how unsettled New York law should be treated by federal or sister state courts, it would give those courts the same latitude that New York courts take with sister state law.

One thing is clear: neither the New York Court of Appeals nor any other New York state court will ever have occasion to answer the question unless it is certified to them.

(Note: This is parallel posted on Prawfsblawg.)

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