The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents paint necessarily touches other areas, including abstention, admiralty, antitrust, labor law and federal proprietary rights. Part IV catalogues how the Justices have changed their colors by relying on the New Erie doctrine in some instances but not even acknowledging its existence in other cases that are analytically indistinct. The Article concludes with the suggestion that federal courts have considerable common law powers, which, rather than being inconsistent with separation of powers, actually function to make exercises of congressional power more effective. Separation of powers is not offended when federal courts create common law, provided that these efforts are constrained by expressions of policy in positive law, the Constitution and federal statutes. Part V of this Article, therefore, offers a sharply modified view of the New Erie aspect of the separation of powers doctrine and briefly discusses the ramifications of its consistent application.
Donald L. Doernberg, Juridical Chameleons in the "New Erie" Canal, 1990 Utah L. Rev. 759 (1990), http://digitalcommons.pace.edu/lawfaculty/46/.