Justice Iredell, choice of law, and the constitution - a neglected encounter.

AuthorCollins, Michael G.
  1. INTRODUCTION

    In cases governed by state law, federal courts are supposed to apply state law consistent with the state courts' elaboration of it. So says the Rules of Decision Act--originally section 34 of the 1789 Judiciary Act (1)--at least as construed by the modern Supreme Court in Erie Railroad v. Tompkins. (2) Prior to Erie, federal courts exercised considerable independence in the interpretation and administration of state law. The perceived vice of the decision that Erie overturned--Swift v. Tyson (3)--was its unwillingness to apply the unwritten law of the state as declared by its highest court. Erie viewed Swift as holding that the "laws" of the several states which the federal courts were bound to apply under section 34 did not include their decisional law "in matters of general jurisprudence." (4) Modern scholarship, however, has suggested that Swift may have been faithful to early understandings that the "general common law" was something apart from state law (as well as federal law), and thus not subject to section 34's command. (5) Still others have suggested that section 34 was itself a command to the federal courts to apply an amalgam of "American" common-law principles, as opposed to the common law of any particular state. (6)

    In the search for the earliest judicial elaborations of section 34, many accounts begin with the Supreme Court's brief (and not particularly well known) opinion in Brown v. Van Braam. (7) There, counsel had argued that the "laws" of the several states referred to in section 34 included a state's common law as well as its statutory law; the Court itself, however, made no reference to section 34 in concluding that state law applied to the case before it. (8) Nevertheless, in an article on which Erie would later rely, Charles Warren emphasized this argument of counsel in Van Braam as evidence of early understandings of section 34 and the role of state law in the federal courts. (9) In addition, the leading book-length study of the framing of the 1789 statute also treats Van Braam as "the first reported civil case citing section 34." (10) And, beginning with its second edition, the Hart & Wechsler Federal Courts casebook has commenced its treatment of section 34 with a note on Van Braam. (11) Echoing Warren, the editors observe that counsel raised a point "of particular interest" when he argued that the "laws" of the states included their unwritten as well as their written law. (12) William Crosskey's elaborate discussion of the federal courts and the common law also begins with Van Braam, but for various reasons, Crosskey discounts its significance for the interpretation of section 34. (13)

    These traditional accounts, as well as other accounts, (14) overlook an earlier and far more detailed treatment of this provision and the problem of choice of law in the federal courts: Justice James Iredell's 1795 Circuit Court decision in United States v. Mundell. (15) The decision has managed to fly under the radar of most federal courts scholars, despite its thorough discussion of the application of section 34 to civil cases and the constitutional underpinnings for requiring resort to state law in matters not governed by federal law. (16)

    In the course of the opinion, as discussed below, Iredell reaches a number of important and interrelated conclusions. First, he determines that state law, including its common law as well as its statute law, should apply in cases governed by section 34 when federal law is silent. Indeed, Iredell intimates that section 34 simply reinforced what would have occurred in federal court anyway, given the absence of any supreme federal law to displace what he considers to be otherwise applicable state law. In this respect, the decision appears to foreshadow the later conclusions of Erie. Second, he provides a lengthy analysis of the possible sources of the "laws of the several states," and concludes that federal courts should apply the common law of a relevant state, as opposed to some amalgam of "American" law unrelated to a particular state's state law. Nevertheless, because Iredell recognizes that the states had affirmatively adopted and adapted a largely similar English common law through various reception provisions, his opinion appears to assume that federal courts might properly construe and apply this shared or general common law in cases before them--but ostensibly as a matter of the law of a relevant state. In this respect, Mundell bears more of a kinship to Swift by its assumption that federal courts would have an interpretive role respecting the general law that was held in common by the various states. Finally, Iredell rejects an argument in the case before him that, because the underlying civil litigation involved the United States as the complaining party, a uniform rule of decision should be fashioned to better accommodate federal interests. Instead, he concludes that the law of the relevant state should apply absent legislation by Congress.

    In this Essay, I will first address why the decision's treatment of section 34 might have been overlooked, and then I will attempt to develop Justice Iredell's constitutional and statutory understanding of choice of law in the federal courts. I will then sketch Mundell's potential impact on early understandings of the Rules of Decision Act and the role of federal courts in the articulation and implementation of state law.

  2. THE MUNDELL OPINION

    1. BACKGROUND

      Mundell has probably been neglected because it was a criminal case. As such, it might appear to be an unlikely candidate for revealing early judicial understandings of the role of state law in civil litigation in the federal courts. (17) In fact, In one of the very few references to Mundell in connection with section 34, Supreme Court historian Julius Goebel treated the decision as having "held ... that section 34 applied to criminal trials." (18) But that characterization is inaccurate. Admittedly, Mundell itself involved a federal prosecution. Federal officials had brought an indictment in the Circuit Court for the District of Virginia against Joseph Mundell for physically resisting and assaulting a federal marshal who was serving process on him in connection with an earlier civil action brought against Mundell by the United States. (19) But the Mundell court's treatment of section 34 did not directly concern the criminal case before it. Rather, as discussed below, the provision was relevant only to the court's discussion of the applicable law in the prior civil suit against Mundell that gave rise to the criminal proceeding.

      The underlying civil suit upon which the criminal action was based was "an action of debt" brought by the United States to recover damages and statutory penalties for Mundell's nonpayment of duties and revenues he owed the United States arising out of his operation of a still. (20) Although the earlier action was a suit for a penalty, Justice Iredell did not hesitate in labeling it a civil suit. (21) As discussed in Mundell, the issue in the earlier federal civil proceeding was whether, in an action of debt commenced by arrest of the defendant, the serving officer could demand bail--failing which, the defendant could be jailed--and whether state law supplied the relevant rule on that question. Congress had not indicated whether bail could be required in civil cases brought by the United States. And if bail was not required under the relevant law, then--according to Iredell--failure to post bail and physical resistance thereafter would not be illegal. (22) Thus, the Mundell case addressed the more ordinary problem of the role of state law in civil cases in federal courts, albeit not in a diversity case, but in a civil suit in which the United States was the plaintiff.

    2. THE APPLICABILITY OF SECTION 34

      With respect to the civil suit, the court saw the question as whether "in this case the law of Virginia alone is to be the rule by which we are to decide whether bail was demandable or not.... [or], that some general law must be the rule, it not being supposable that in a case of this kind congress meant to refer to any local laws of the particular states, which might be inapplicable in all their circumstances to the cases of the United States." (23) Iredell acknowledged that this might be an area in which Congress could legislate directly, by insisting on bail (or jail) in civil suits brought by the United States. But he proceeded to note that it might be preferable in a new republic, consisting of different pre-existing legal systems, "to refer generally to the laws of the different states ... as well in cases of general and local concern," both to save legislative energy and to accommodate prevailing expectations within the different...

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