Since announcing Erie Railroad v. Tompkins in 1938, the Court has developed, discussed and applied Erie’s doctrine by attempting to decide whether the state and federal rules potentially governing the issue in question are substantive or procedural. That is often not an easy characterization to make, and it depends greatly on context. Statutes of limitation, for example, are substantive for Erie purposes but procedural for most other choice-of-law purposes. The result has been uncertainty and confusion in applying the Erie doctrine. This article suggests that there is a better way to understand the doctrine and to predict how the Court will decide vertical choice-of-law questions in future. If one uses the lens of interest balancing, the most common horizontal choice-of-law technique today, to understand the Court’s decisions, they make a lot more sense and, in fact, display a coherence long thought to be lacking in Erie jurisprudence. The doctrine becomes easier to understand and to apply, and the interest-balancing analysis dispenses with the centrality of the question of whether a particular rule or issue is substantive or procedural.
Doernberg, Donald L., "The Unseen Track of Erie Railroad: Why History and Jurisprudence Suggest a More Straightforward Form of Erie Analysis" (2007). Pace Law Faculty Publications. Paper 300.