In this Essay I explore what traditional Erie cases would look like if we treated those cases just like classic federal common law cases. I conclude that such an approach is consistent with Erie itself and is also consistent with many of the holdings, if not the language, of traditional Erie cases. This unified approach to substantive and procedural federal common law might have some advantages. In addition to providing conceptual uniformity, this approach would offer an escape from current Erie doctrine, which is confused and unsatisfactory. Under the current doctrine, the Court appears to vacillate between the balancing test of Byrd and the modified outcome test of Hanna. These two tests are largely inconsistent, and the Court has offered no explanation for how they interrelate. The Court's most recent Erie case, Gasperini, offers little guidance on how to reconcile these two conflicting tests. Instead of tinkering with Byrd and Hanna, maybe it is time to try something more dramatic. This Essay is an exploration of one such alternative approach.
Wendy Collins Perdue, The Sources and Scope of Federal Procedural Common Law: Some Reflections on Erie and Gasperini, 46 Kan. L. Rev. 751 (1998)