A post at Opinio Juris by Duncan Hollis directs our attention to an article by Craig Green entitled, Repressing Erie's Myth. The article refutes the "new sovereigntist" position, which put very simply is that customary international law's status as federal common law did not survive the holding in Erie. This contested notion has become very important in light of the war on terror, detainees being held at Guantanamo, questions about judicial power, and whether the US is bound by human rights practices followed by a majority of other countries throughout the world. Green's article presents arguments that the status of customary international law was not effected by Erie and should still be considered federal law. Here is a quote from the introduction:
[T]here are at least three decisions that stand as cultural pillars of our legal architecture: Marbury v. Madison, Brown v. Board of Education, and Erie Railroad v. Tompkins. Though it’s unclear just what separates “iconic cases” from others, every lawyer knows these three by name and has some idea what they mean. . . These iconic cases are modern orthodoxies, which inspire debate but rarely dissent, and their privileged status makes disputes over their meaning perennially important. This Article seeks to undermine Erie’s iconic prominence. Erie’s bare holding—that federal diversity cases apply state substantive law—is established beyond boredom, and this Article will not dispute it. My quarrel is with Erie’s “myth,” its claim to be a foundation of United States law. Although Erie’s myth has been retold for generations—by such jurists as Brandeis, Friendly, and John Hart Ely—it stands on flawed premises.
And here is a bit from the abstract:
[Erie] has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts.
My goal is to limit exaggerations of Erie's importance and forestall resultant threats to judicial power. This critique of Erie's myth has three parts: First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism. Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth's broadest consequences. Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson's account of executive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue.
Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case’s shadows.
Hollis has a more thorough summary of Green's peice than what you've found here, and so I also recommend reading his piece at Opinio Juris, What if Erie had nothing to do with the status of customary international law in U.S. law?