A critical guide to Erie Railroad Co. v. Tompkins.

• Author: Nelson, Caleb
• Position: II. Justice Brandeis's Arguments in Erie through Conclusion, with footnotes, p. 950-986

2. JUSTICE BRANDEIS'S ARGUMENTS IN ERIE

Federal courts applied the doctrine described in the previous Part until 1938. In that year, however, Justice Brandeis's opinion in Erie instructed federal judges to follow state-court precedents on all questions that lie within the states' legislative competence, even if those questions would previously have been classified as matters of "general" law. (78) Brandeis left various details to be worked out in later cases. (79) But on the basic issue raised in Erie itself, Brandeis's opinion was clear: within the limits of the states' lawmaking powers, precedents that a particular state's highest court had established and to which it continued to adhere were to have the same status in federal court as statutes enacted by the state's legislature.

Justice Brandeis advanced three different categories of arguments for this conclusion. First, he argued that Justice Story's opinion in Swift v. Tyson had misinterpreted section 34 of the Judiciary Act of 1789 and that the original meaning of the statute compelled the result in Erie. (80) Second, he observed that "the doctrine of Swift v. Tyson" was having bad effects in practice. (81) Third, he argued that the course pursued by the federal courts under Swift was "unconstitutional[ ]" (and, seemingly relatedly, that it rested on a "fallacy" about the nature of law). (82) This Part examines each of those arguments in turn.

1. Justice Brandeis's Historical Argument

   Justice Brandeis opened with an argument about history. As mentioned above, section 34 of the Judiciary Act of 1789 had specified that "the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." (83) (By the time of Erie, this statutory provision was known as the "Rules of Decision Act" (84) and was found at section 721 of the Revised Statutes of 1874. But section 721 of the Revised Statutes was substantively identical to section 34 of the original Judiciary Act, and Justice Brandeis's opinion therefore referred throughout to section 34.) In Swift v. Tyson, Justice Story had held that the phrase "laws of the several states" in section 34 covered (1) written state laws, (2) "long established local customs having the force of laws," and perhaps (3) settled precedents of the state courts about the content of these "local" laws, but not (4) decisions of the state courts on "questions of a more general nature," such as "questions of general commercial law." (85) According to Justice Brandeis, however, "the more recent research of a competent scholar" had "established" that "th[is] construction ... was erroneous" and that section 34 had been intended to make federal courts follow state-court precedents about the "general" aspects of the state's unwritten law as well as the "local" aspects, (86) The "competent scholar" whom Brandeis cited was Charles Warren, who had unearthed new information about the drafting history of section 34.s7 Warren had located ("in the attic of the Capitol") the original version of the Judiciary Act as introduced in the Senate, and he had also located ("in a cellar room, under a heap of miscellaneous papers of confused and intermingled dates and subjects") a copy of the bill as approved by the Senate and sent to the House. (88) Warren saw that section 34 did not appear in the former document but did appear in the latter document, meaning that it was added at some point during the Senate's consideration of the bill. (89) What is more, Warren found evidence of the amendment that added it. Among other "odd, loose slips of paper of different sizes and shapes" that set forth proposed amendments to the judiciary bill and that had been "preserved in a bundle, in the Senate Files [in the Capitol's attic]," (90) Warren discovered a sheet--apparently in the handwriting of Senator Oliver Ellsworth (91)--setting forth both a draft of what became section 34 and the edits that produced the final version. Although some words in the draft are struck out, they are still legible, and they show that the draft referred to "the Statute law of the several States in force for the time being and their unwritten or common law now in use, whether by adoption from the common law of England, the ancient statutes of the same or otherwise." (92) Through emendations that appear on the same sheet, this passage was replaced with the shorter phrase "the laws of the several States," yielding the provision that appears as section 34 of the Judiciary Act. From this progression, Warren inferred that "the [phrase] 'laws of the several States' was intended to be a concise expression anda summary of the more detailed enumeration of the different forms of State law, set forth in the original draft," (93) and hence that section 34 encompassed not only each state's "Statute law" but also its "unwritten or common law." For Warren, it followed that section 34 dictated the result that Justice Brandeis would later reach in Erie rather than the result that Justice Story had reached in Swift v. Tyson. Indeed, Warren wrote as if this conclusion were obvious: "Had Judge Story seen this original draft of the amendment, it is almost certain that his decision would have been the reverse of what it was." (94)

   Even if one were otherwise to accept Warren's argument (and, as we shall see, that would be a serious mistake), the idea that information about the drafting history of section 34 would have changed the result in Swift v. Tyson is anachronistic. While the practice of consulting drafting history in statutory interpretation had become common by Warren's day, neither Justice Story nor his predecessors would have considered it appropriate. (95) Indeed, even modern judges who are sympathetic to this practice (96) might resist invoking the particular type of document unearthed by Warren--a sheet that (1) was not publicly available for the first 135 years after the Judiciary Act became law and (2) reflected a drafting change that might not have been widely known even among members of the enacting Congress. (97)

   Still, these threshold objections are not themselves fatal to Warren's position. Even if the type of drafting history unearthed by Warren is not something that the early Supreme Court would have used to interpret early statutes, and even if it also is not the sort of thing that the modern Supreme Court would use in interpreting modern statutes, perhaps it is still useful when the modern Court needs to interpret an early statute--that is, when modern interpreters have to try to recreate the understandings of a past world. If Warren's arguments were valid, they might shed light on how at least one distinguished lawyer of the late eighteenth century used the phrase "laws of the several States." And unless we have some reason to think that Senator Ellsworth had a different understanding of that phrase than his contemporaries, perhaps this evidence sheds light on the original meaning of section 34 after all. (98) For the sake of argument, then, let us set aside any objections to Warren's willingness to consult drafting history in the first place, and let us also assume that whatever the drafting history shows about Senator Ellsworth's understanding of section 34 can properly be treated as the original meaning of that provision. Warren's argument still has two serious flaws.

   The first flaw is well known to modern scholars. The crucial premise of Warren's argument is that when Senator Ellsworth or his colleagues decided to use the phrase "the laws of the several States" as a substitute for the earlier draft's reference to "the Statute law of the several States in force for the time being and their unwritten or common law now in use," the change was mostly stylistic rather than substantive: the shorter phrase was intended to refer to all the same types of law as the more detailed phrase. (99) As modern scholars have pointed out, though, Warren offered no support for this assumption, and the assumption is not obviously correct. (100) After all, legal draftsmen often change the language of a bill in order to alter its meaning, not to keep its meaning the same. Suppose, however, we could somehow know that Senator Ellsworth's changes were indeed primarily stylistic. There is still a second major flaw with Warren's argument--one that is less familiar to modern scholars than the first flaw, but more devastating. Suppose that section 34 had explicitly said what Warren took it to mean: "the Statute law of the several States ... and their unwritten or common law ... shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply" (except where the Federal Constitution, federal treaties, or federal statutes shall otherwise require or provide). Warren's conclusion still would not follow. In 1789, people did not automatically treat the phrase "unwritten or common law" as a synonym for "judicial decisions." (101) Thus, even if section 34 had explicitly instructed federal courts to draw rules of decision from the "unwritten or common law" in use in each state, section 34 would not necessarily have been ordering federal courts to accept state-court precedents about the content of the unwritten or common law. Instead, lawyers of the day could have read section 34 in the same way that Chancellor Taylor read the ordinance specifying that "the common law of England ... shall be the rule of decision" in Virginia: even if section 34 adopted the common law in use in each state, it did not necessarily adopt the decisions of each state's highest court. (102) More generally, section 34 need not be read to address the deference that federal courts owe to the decisions of each state's highest court about the content of any of the sources of law that section 34...