Of Activism and Erie: The Implication Doctrine’s Implications for the Nature and Role of the Federal Courts

Abstract

It is clear that Erie is a major precedential foundation for Justices Powell and Rehnquist in their attempt to force a reconsideration of the role of the federal judiciary. In this article, the author finds that a new Erie doctrine has emerged, and it’s a potent counterforce to judicial activism in the nonconstitutional domain. The doctrine can be seen at work most clearly in Justice Powell’s largely successful attack on the practice of implying rights of action from federal statutes. The new Erie doctrine’s implications, however, extend much further. Apart from its practical ramifications, the vision of the federal judiciary articulated by Justices Powell and Rehnquist is fundamentally at odds with the vanguard of academic thinking. For those who take the separation of powers seriously, the author argues, Justices Powell and Rehnquist have chosen the correct path.