Federalism is alive and well and living in New York: Honorable Hugh R. Jones Memorial Lecture.

Author:Wachtler, Sol
Position:Honorable Hugh R. Jones Memorial Lecture

I am honored to be given the opportunity to deliver a lecture named after one of my dearest friends, Hugh R. Jones. We became fast friends when we were both nominated for the Court of Appeals back in 1972. We ran together. In those days we had to run in a statewide election and we were both elected. I was privileged to serve with him on the New York Court of Appeals for a decade.

Although I am aware of the fact that none of us is perfect, I can say, without equivocation, that Hugh was as close to being a perfect human being as anyone I have ever met. Remembering the fact that I served on the New York Court of Appeals for twenty years with more than twenty-four judges of the court, and under three Chief Judges, I can also say that he was one of the best judges with whom I ever served. His mathematical training endowed him with the mind of a logician; this, coupled with his vast knowledge of the law, his profound understanding of the human condition, and his worldly experiences equipped him to add an unequaled dimension and profound wisdom to our court.

On a very personal level, when I was in the throes of despair, Hugh drove from Utica to Long Island through a blizzard to spend two days with me. His strength helped me to endure, as did our friendship.

I visited with Hugh frequently after I left the Court and was with him shortly before he died. He was severely disabled, living in an assisted living facility, but he still brimmed over with his characteristic brilliance, enthusiasm for life, and spirituality. I miss him more than words can say: as a legal scholar, a beloved colleague, and most of all as a dear friend.

New York State was reluctant to ratify the United States Constitution. New York's reluctance was, in no small measure, due to its unwillingness to cede its state sovereignty to a federal government, which, it feared, would take power away from the individual citizen as well as the state. Governor George Clinton of New York was an anti-Federalist who stood in strong opposition to the ratification of the Constitution. After all, in New York we had a strong state government and had crafted a unique court system. Our law Chancellor was the brilliant Robert Livingston, who later swore in George Washington as President of the United States and our first Chief Judge was John Jay, who later was to become the first Chief Justice of the United States Supreme Court. We felt no need to place our state into the hands of a federal government.

When the Bill of Rights was added to the Constitution, particularly the Tenth Amendment which guaranteed the integrity of state governments, New York's fear of federal government encroachment was mollified. That is until 1801 when John Marshall became the Chief Justice of the United States. Justice Marshall, who had been a leader of the Federalist Party in Virginia, dominated the Supreme Court for over three decades and elevated the federal judiciary to its position as an independent and influential third branch of government.

The Marshall Court was responsible for several important decisions affecting the balance of power between the federal government and the states, repeatedly confirming the supremacy of federal law over state law through an expansive reading of the powers constitutionally vested in the federal government. Although the Jeffersonian Republicans favored stronger state governments, the Federalist Party, with the assistance of the Marshall Court, furthered the cause of building a strong federal government at the expense of the states.

The Depression of the 1930s provided the impetus for an even greater dominance of the federal courts with a strengthening of Supreme Court judicial review, a broad interpretation of the commerce clause, and the application of the Bill of Rights to the states through the Fourteenth Amendment. Nevertheless, there still was recognition of the state's role in establishing its own common law which the federal courts were constrained to follow, but just barely.

For example, in 1842, under the case of Swift v. Tyson, the United States Supreme Court held that the federal courts were obligated to follow state law but only to the extent that those laws related to local matters. These "local matters" were characterized by Moore's Federal Practice as falling into such broad categories as personal property, real estate, taxes imposed by municipalities, water rights, and domestic relations. In other areas, the federal courts were free to fashion their own common law.

Under this formulation, the federal courts found it difficult to determine when they had to apply state law. There was inevitable confusion as to whether a particular case implicated general law, subject to the federal "common law," or if the law to be applied was the state "local law." Recognizing this difficulty, the Supreme Court, in the 1938 case of Erie Railroad v. Tompkins, observed "the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law." (1)

The Supreme Court sought to eliminate this confusion by the overruling of Swift and by deciding, in the Erie Railroad case that, except in matters involving the United States Constitution or acts of Congress, federal courts must apply state common law to resolve all substantive law issues. The Erie court also noted that this decision to defer to state law was consistent with the United States Constitutional principles of federalism as embraced by the Tenth Amendment.

Although identifying state law as the law to be applied by the federal courts seemed to resolve the problem, there arose the question as to where that state law was to be found. Erie answered by saying that it was to be found in the state law: "declared by its Legislature in a statute or by its highest court...." (2) And if there were no statute or relevant precedent from the state's highest court from which the federal courts could glean the mandate of state law? The Supreme Court did not answer that question in Erie...

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