Swift to Erie/York, Hanna and Beyond: Proposed Solutions for a Major Problem of Diversity Jurisdiction

There are four purposes of this article: First, to expose more fully the nature and dimensions of the difficult problem of determining whether a particular rule is “substantive” or “procedural”; Second, to discuss the various judicial attempts to solve it; Third, to show the shortcomings of those attempts, as manifested in both established doctrine and current federal judicial opinions; and, Fourth, to propose some solutions. It should be made clear that we are involved here with a question of allocating power within our federal union. Diversity characterization functions as an unintended device allocating power between state and federal judiciaries. The difficulties inherent in our basic problem are magnified because feelings run high in this area, and opinions differ widely. The author of this article is not a partisan of either “states’ rights” or centralization of power in the federal government. An allocation of power was made by the framers of the Constitution nearly two hundred years ago, and the durability of their product attests to the wisdom of their effort. Circumstances have changed radically since then, and corresponding changes in power allocation are probably needed now. The author believes that power should be allocated to state or nation according to current needs and relative capabilities. Some alteration by judicial “legislation” is both inevitable and desirable. It is believed, however, that most of the required change should be made in the authorized manner – with the combined consent of the governed and those politically responsible to them, and not by politically unresponsive judges.