Erie Unprecedented

Tyler A. Dobbs*

Since Erie Railroad Co. v. Tompkins, the Supreme Court has instructed lower federal courts to follow state common law as declared by the state courts—and not to make it themselves. But starting in the middle of the twentieth century, the federal courts of appeals developed a new rule about precedent: Past circuit decisions strictly bind future circuit panels, which cannot overturn past precedent even if they disagree with it. In every circuit, this rule of prior panel precedent now applies even to past circuit decisions construing state law. This has resulted in a situation much like the one Erie sought to prevent. Federal courts today adhere to federal interpretations of state law, even when those federal-court precedents have no basis in, or have been undermined by, state-court decisions. As a result of federal-court precedent, state law as applied by federal courts now often deviates from state law as applied by state courts.

In response, this Article proposes three ways to minimize the precedential effect of Erie decisions—federal-court decisions on state law. First, federal courts should liberally invoke the practice of certification: sending unclear questions of state law to the state supreme court for answers. Second, the federal circuits should decline to publish opinions that mainly deal with state law questions, depriving those opinions of precedential force. And most ambitiously, each circuit should modify its own rules about precedent, so that its decisions on pure state law questions have no precedential weight, even when included in published opinions. By leaving the creation of common law precedent to the state courts, each of these solutions would advance the aims of the Supreme Court’s Erie framework.

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© 2026 Tyler A. Dobbs. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* J.D., magna cum laude, Harvard Law School. For helpful comments and conversations, I am grateful to Joel Alicea, A.J. Bellia, Samuel Bray, Bradford Clark, Catherine Cole, Isabel Dobbs, John Duffy, Nicole Garnett, Sherif Girgis, Jack Goldsmith, Zachary Grouev, David Hyman, Jason Jarvis, William Kamin, Randy Kozel, Max Kuhelj Bugaric, Jason Muehlhoff, Lee Otis, Haley Proctor, Ryan Proctor, Joseph Simmons, Owen Smitherman, and Marisa Sylvester. Many thanks to Patrick Aimone, Frances Choi, Lucy Collins, and Nicholas Nelson for excellent research assistance. This Article is dedicated to the memory of Alton R. Dobbs, my grandfather—cuius animae propitietur Deus.