Can Erie survive as federal common law.

Author:Green, Craig

A remarkable aspect of this symposium is its self-conscious effort to straddle theory and doctrine. On the theoretical side, our title "Law Without a Lawmaker" gestures toward an abyss of imponderables. If law without lawmakers were even conceivable, who or what would make such law? And if law without lawmakers is not made by anyone, has it somehow existed forever and always? Even explaining law without lawmakers by reference to an arguably lawmaking divinity or social consensus might not save such unmade law from its skeptics.

By contrast, the prospectus accompanying our symposium shifts quickly from theory to Erie. (1) Erie Railroad Co. v. Tompkins is a chestnut among American legal technicians, as it prescribes applicable law for federal courts that exercise diversity and supplemental jurisdiction. Regardless of existential disputes that surround "law without a lawmaker," Erie's doctrinal status is overwhelmingly secure. (2)

Some readers might be unsettled by fusions of high theory and workaday doctrine, yet theoretico-doctrinal analyses of Erie have surfaced throughout the legal academy. For at least two decades, Erie has been the case that launched a thousand ships, as a generation of scholars has sought guidance from Erie about topics ranging from customary international law to state choice of law, from federal common law to jurisprudential theory. (3) Each of these interpretations has characterized Erie not just as an ordinary decision with facts and a holding, but as an iconic representation of broad constitutional or jurisprudential principles.

This Article takes stock of Erie's florescence. To preview my conclusions, I tend to resist most connections between Erie and wider fields of legal doctrine, yet I think that debates over Erie's meaning can illuminate links between legal theory and legal history. Many present-day theorists invoke the cultural authority of doctrinal icons like Erie without identifying connections to the judicial opinion's text, context, original meaning, precedential trajectory, or historical reconstruction. (4) Abstract methodologies like originalism, textualism, and "living" dynamism are familiar when it comes to interpreting statutes, constitutions, or treaties. (5) Yet similar methodologies for interpreting judicial decisions have drawn less attention. (6) This Article will not endorse anything like "originalism for judicial opinions." (7) Instead, I simply propose that expansive applications of Erie--if construed as representative models for interpreting iconic cases---could raise some of the same jurisprudential problems that Erie's theorists wish to solve. This Article also suggests that Erie, like its predecessor Swift v. Tyson, should be understood as an example of federal common law--not as a barrier restricting it.

Part I begins by characterizing Erie as quite a radical decision in its day. I will argue that, even though the Court's reasoning about constitutional federalism was terribly flawed, Erie's result seemed urgently necessary in 1938 and remains vital today. Much of this history is familiar but underappreciated. Lawyers are often taught that Erie is essential, but they less often grasp precisely why or how. (8) Reviewing what Erie said, and why, will create a useful baseline for evaluating various interpretations of the decision.

Part II considers modern theories of Erie that have little textual support in the Court's opinion. Some scholars have proposed that cases like Erie contain "no law" for federal courts to apply other than state law. (9) By these assessments, Erie's result was either inevitable, demanded by right-thinking jurisprudence, or required by constitutional due process. I believe that such theories confuse Erie's result with its justification. Erie famously declared that "[t]here is no federal general common law." (10) But that was a performative edict, not a preexisting reality. On the day before Erie, there was indeed federal general common law; there was a lot of it. Every federal court in the country had applied federal general common law, and hundreds of cases each year had relied upon such law for nearly a century. (11) Modern assertions that then-operative "law" was "not law" seem to evaluate pre-Erie decisions using modern conflicts theories, as though the latter were persistent or natural truths. (12) Erie's own history illustrates how quickly such theories can change.

Part III analyzes Erie's relationship to legal theory, legal history, and conflicts of law. One of the legal academy's great ambitions is to confirm, dispute, or revise conventional wisdom about existing legal doctrine and practice. (13) And although some of these intellectual ventures rely solely on logic and common sense, many follow legal professionals by citing conventional authorities like Erie. In recent decades, Erie's venerable name has appeared in immensely wide-ranging debates, and this Article questions in general terms whether the decision's link to some of these issues is overstated.

Without disparaging the use of Erie as a quasi-literary source that illustrates jurisprudential points by evocative echo or analogy, I propose that applications of many iconic cases might benefit from closer attention to judicial language and historical context. For Erie in particular, such scrutiny does not favor the decision's broadest applications. Instead, I think that Erie is best interpreted as a subconstitutional ruling about choice of law in federal courts. On that revised footing, Erie's concern to abolish "federal general common law" would not be a trump card that can easily bolster and embody grand legal theories. The only good Erie, I would suggest, is a small Erie.


    Because Erie is so uncontroversial today, its radical history is easy to forget. From at least 1842 until 1938, federal courts decided stacks of cases based on what Erie would call "federal general common law." (14) In federal cases involving diversity, pendent, or ancillary jurisdiction, federal general common law allowed federal judges to deviate from state law that would have governed similar cases brought in state court. (15) That term of art, "federal general common law," described pre-Erie circumstances perfectly. Such law was "federal" because it was created by federal courts and applied exclusively in federal cases without preempting state common law in state court. (16) It was crafted using "common-law" reasoning and techniques, and it did not purport to displace or apply any form of statutory or constitutional law. (17) It was "general" in the same sense as other tort and contract law: it was based upon broad judgments concerning efficiency and fairness, (18) Federal general common law under Swift was also separated from peculiarly "local" institutions and issues, such as real estate or slavery. (19)

    As a historical matter, the Swift regime did not rest on high jurisprudential theory. Federal judges simply believed that state courts were sometimes terribly wrong in making common-law rulings about commerce, torts, contracts, and the like. (20) America's greatest conflicts scholar, Joseph Story, held in Swift that when Congress clearly granted federal jurisdiction, but did not declare that state law must be binding, federal courts retained common-law authority to make their own substantive decisions. (21) This mechanism of federal general common law allowed federal courts, within the confines of their own federal cases, to avoid perpetrating injustices, inefficiencies, and stupidities that federal judges perceived in various state cases. (22) As the Supreme Court once roared: "We shall never immolate truth, justice, and the law, because a State tribunal has erected the altar and decreed the sacrifice." (23) Federal judges felt sure that they could reason about the subjects of general common law just as well as their state-commissioned brethren. Thus, in the presence of statutory jurisdiction, and in the absence of statutory constraint, such judges saw no reason to become ventriloquists for state courts and state common law. (24)

    The Supreme Court held in the late twentieth century that the federal diversity statute is not a license for federal courts to make substantive law. (25) But I would stress that Swift's contrary result was not absurd in the abstract. Just as Article III had contemplated, Congress granted diversity jurisdiction, and this led federal courts to face cases in which federal statutes, treaties, and the Constitution prescribed neither applicable substantive law nor choice-of-law rules. (26)

    Jurisdictional grants that do not specify substantive law, and thus require judicial lawmaking, are not at all rare. Whether one reviews English colonialism, territorial courts under the Northwest Ordinance, or the broad run of state tribunals, courts must have frequently confronted legislative grants of jurisdiction without substantive guidance. (27) Swift's choice to apply its own judicially crafted rules of substantive law--rather than those of New York's courts-implied a federal judicial authority to create such substantive rules. Federal courts correspondingly asserted and exercised the power to limit federal general common law, applying such rules to only some issues decided in diversity cases. (28) Federal courts also invoked lawmaking authority not to make federal general common law preemptive with respect to state courts' common-law decisions. (29) Although federal general common law's nonpreemptive status is sometimes criticized, and it certainly seems odd today, (30) such nonpreemption must at the time have seemed like a useful compromise that simultaneously protected state courts' autonomy to decide state cases and federal courts' autonomy to avoid perceived errors.

    This is how matters stood for almost one hundred years, but the verb "stood" does not imply stasis. Federal courts continually decided cases...

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