Erie analysis flowchart

This flowchart was based on ideas from Glannon‘s Examples & Explanations. He provides wonderful analysis of “Easy Erie” and “Eerie Erie,” which I recommend to you highly.


  1. Determine the applicable state Law. That law might be:
    1. Substantive, such as a duty of care.
    2. Procedural, such as a method of serving process.
    3. Some murky middle ground, such as a statute of limitations.
  1. Determine potentially conflicting federal Law. This might be:
    1. The Constitution, such as the right to a jury trial in federal court.
    2. A federal statute, such as the venue statute.
    3. A rule of procedure, such as FRCP 4.
    4. Federal judicial practice, such as a federal judicial preference for laches.
    5. Federal general common law, such as a federal judge crafting a duty of care in a tort case arising solely under diversity.
  1. Determine whether there is a conflict. This is easier said than done.
    • Note that in Walker, the Court interpreted FRCP 3 narrowly to avoid a direct conflict between FRCP 3 and state law. As a result, the conflict was not between a FRCP and state law (triggering REA/Hanna II analysis), but instead between federal judicial practice and state law (triggering RDA/Erie/Hanna I analysis).
    • Further note that in Shady Grove, the court split over whether the conflict between state and federal law was an REA or RDA conflict.
    • What does this mean for the student? A student might need to argue in the alternative, such as the Justices did in the competing arguments in Shady Grove. See also FN 7 of Scalia’s opinion in Shady Grove.
    • Accordingly, be prepared in part 4 (below) to consider whether the federal law at issue might be characterized in different ways (parts 2(a) through 2(e), above). Analyze in the alternative.
  1. Analyze the conflict(s). As noted above, if the scope of federal law is debatable, then you may have to analyze in the alternative. Below are five types of conflicts. Come to class prepared on how you would do the analysis for each of the conflict scenarios below:

U.S. Constitution conflicting with state law.

Federal statute conflicting with state law.

Federal rule created under the REA conflicting with state law.

Federal judicial practice conflicting with state law.

Federal general common law conflicting with state law.

Posted March 6, 2015