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How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in federal question cases. In this essay, I discuss these concerns in the specific context of federal civil rights litigation.

In general, when conflicts between state law and federal common law arise in federal question cases, federal law should not be unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented. After all, while forum shopping can be a necessary evil in diversity cases, it can also be a virtue in federal question cases, because litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts.

Moreover, in civil rights litigation in federal court, there may be even stronger reasons to prefer federal law – federal jurisdiction is made available in civil rights cases not only for the usual reasons. In most civil rights cases, whether founded on federal or state substantive law, state and local entities and their officials are defendants, raising suspicion about the application of state law that interferes with the vindication of federal rights. At the same time, where state law is more open to holding officials accountable for civil rights violations, there may be reasons to apply state law over more restrictive federal law. This essay will therefore consider how to analyze conflicts between state and federal law in civil rights litigation brought in federal court.



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University of Akron School of Law


Civil Rights and Discrimination | Courts | Jurisdiction | Law | Legislation


Symposium: Erie at Eighty: Choice of Law across the Disciplines



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