Severability as an Erie Question
by Ryan Scoville, Assistant Professor of Law, Marquette Law School.
Marquette Law School, Eckstein Hall
1215 West Michigan Street
7:30 a.m., registration and continental breakfast
8:00 to 9:00 a.m., program
$15 per person
Parking will be validated
1 CLE credit applied for
The doctrine of “severability” permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. Severability figures centrally in a broad array of constitutional litigation, including recent litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. Yet the doctrine has a number of vexatious features. In particular, courts have failed to establish satisfying choice-of-law rules for the doctrine. This CLE will focus on how recent Supreme Court decisions have quietly established the severability of state statutes in federal court to be a matter of general federal common law, and how this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest. In doing so, the CLE will highlight how the new doctrine challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The CLE will close with a discussion of an alternative doctrine that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.