Untethered norms after Erie Railroad Co. v. Tompkins: positivism, international law, and the return of the "brooding omnipresence".

• Author: Brilmayer, Lea

TABLE OF CONTENTS INTRODUCTION I. ERIE'S JURISPRUDENCE: THE POSITIVE SIDE A. General Common Law: Some Background 1. General Common Law: Position 2. General Common Law: Provenance 3. Untethered Norms, Popular Participation, and Legitimacy II. ERIE'S JURISPRUDENCE: THE CRITICAL SIDE A. Unavoidable Reliance on Untethered Norms B. Customary International Law 1. Customary International Law: What It Is 2. Customary International Law and Erie's Nonexistence Claim 3. Possible Distinctions III. CHOICE OF LAW AND UNTETHERED NORMS: AN EXPERIMENT A. Why Choice of Law? B. Choice of Law: Basic Problem, Urgent Needs CONCLUSION INTRODUCTION

Positivism, in the American legal system, is the jurisprudence of choice. Law is not some metaphysical creation arising by spontaneous generation out of logical or philosophical first principles, which human judges then decipher. (1) Positivism tethers a legal norm securely to the entity that created it, with that same official entity calling the shots when the time comes to apply, interpret, alter, or overrule it. Untethered norms are dismissed as mere "brooding omnipresences." (2)

The case most associated with the Supreme Court's endorsement of positivism is Erie Railroad Co. v. Tompkins. (3) In an opinion by Justice Brandeis that dabbled in American history, (4) policy, (5) and jurisprudence (6)--in addition to the usual constitutional law (7) and statutory construction (8)--the positivists on the Court held that federal judges should cease their independent determination of "general common law" and follow in the footsteps of their state court colleagues sitting a block away. (9)

But the case for the positivist perspective is not as clear-cut as it first appears. (10) The rejection of "untethered norms" is selective, with positivists relying on them whenever they are needed to prove the positivists' point. (11) Moreover, it is unclear why general common law has been singled out for pariah status when other areas of law, similarly untethered, have not been written off as well. One of these other areas of law is customary international law, which, although nearly as vulnerable to the positivist critique as general common law, is rarely challenged. (12) Perhaps other subject areas, such as conflict of laws--a subject with historical roots deep in general common law--should enjoy comparable indulgence. (13) As this Article will show, there are good arguments in favor of this proposal. (14)

Erie's jurisprudence leaves many questions unanswered. And the fact that Erie got the answer to the basic legal issue right--on constitutional and statutory grounds--is not a reason to ignore these questions. Erie began the problem, and that is where we have to begin the search for a solution.

1. ERIE'S JURISPRUDENCE: THE POSITIVE SIDE

   Erie Railroad Co. v. Tompkins is not a case that needs much introduction; however, it has many different strands and a word or two is needed to identify which ones are relevant. Our story focuses on Erie's jurisprudential features, not its statutory or constitutional ones, and in particular on Erie's claim that general common law does not exist. (15)

   1. General Common Law: Some Background

   Erie, as we all know, was based in large part on a reinterpretation of section 34 of the Judiciary Act of 1789, commonly known as the Rules of Decision Act. (16) That Act stated that "[t]he 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." (17) The central question in Erie was whether the scope of the phrase "the laws of the several states" included only statutes, or if it also encompassed state decisional law. (18)

   The pre-Erie taxonomy of "laws" was formidable. Kermit Roosevelt lists the different types recognized by general common law aficionado Joseph Beale, and summarizes their arcane definitions:

   Beale's treatise recognizes several different kinds of law. "Theoretical law," for instance, he defines as "the body of principles worked out by the light of reason and by general usage, without special reference to the actual law in any particular state." By contrast, "[p]ositive law" is "the law as actually administered in a particular country." Last, in some ways intermediate between the positive and the theoretical law is what Beale refers to as the "general common law," an unwritten body of law "which is accepted by all so-called common-law jurisdictions but is the particular and peculiar law of none." The doctrines of the common law, Beale writes, "are authoritative in each state whose law is based upon it; and the decisions of courts of all such states are important evidences of the law." (19) Some of the types of "laws" that Beale's treatise mentions qualified under the Rules of Decision Act as state law that had to be respected in federal courts; general common law, however, did not. Two characteristics of general common law were implicated in the fact that it did not qualify as "laws of the several states." These characteristics that marked general common law for special jurisprudential scrutiny were, first, the position of general common law in relation to state decisional law, and, second, general common law's provenance of communal authorship.

   Norms possessing both of these characteristics will be referred to below as "untethered." Positivism rejects the concept of untethered law. Under positivism, law is not found by searching above and beyond the state: it is made by decision makers of the state itself exercising their appropriate political authority. And once made, it is the law of a particular state--the state that authored it--and not part of some shared enterprise. It is the position and the provenance of a norm or set of norms that make it untethered, and general common law was defective in both of these respects.

   1. General Common Law: Position

      The first distinctive characteristic of general common law was its supposed position in relation to state decisional law. As used here, "position" includes several interrelated elements. General common law was envisioned as above state decisional law in authority because it was considered more substantively reliable and accurate--the norm against which state decisional law could be tested for correctness. It was situated beyond the law of any particular state, meaning that it was outside the reach of state decision making and control. And it was objective in the sense that judges found it, not made it. (20) These overlapping elements of general common law's position will be referred to here as status, locus, and objectivity.

      Commentators often used hierarchical and spatial metaphors to describe general common law's special position. They referred to general common law as a "brooding omnipresence in the sky," (21) or "a transcendental body of law outside of any particular State but obligatory within it." (22) Similarly, "independence" was used to describe it: general common law was "independent of any particular state or lawmaking authority ... [but] authoritative in [ ] every common law jurisdiction." (23)

      General common law's supposed position brought it into direct conflict with basic positivist principles. Positivism denies that there are binding norms lurking somewhere in the great beyond, waiting to be discovered. Justice Holmes put the point clearly and simply: "The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found," (24) adding that "the Supreme Court of a State does something more than make a scientific inquiry into a fact outside of and independent of it. It says with an authority that no one denies ... that thus the law is and shall be." (25) Courts make law, positivists say. They are not engaged in finding it, and certainly not in the locations where general common law expected it to be--namely, outside the reach of state authority.

      Of course, there are bodies of law that are apart from and superior to state decisional law. The U.S. Constitution would be both "above" and "beyond" the reach of state decisional law if the two ever came in conflict. (26) But general common law is hardly in the same position as the U.S. Constitution. General common law's provenance, unlike the U.S. Constitution's, is questionable. The second distinctive characteristic of general common law was its shared authorship, a fatal flaw as far as positivism was concerned.

   2. General Common Law: Provenance

      General common law's second jurisprudentially significant characteristic was its provenance. General common law purported to be based on the common law of the states--all of them. It was not the product of any one state's decisional law but a synthesis that took into account the common law of all. (27) As one pre-Erie case applying it explained,

      For the discovery of common law principles applicable in any case, investigation is not limited to the decisions of the courts of the State in which the controversy arises. State and federal courts go to the same sources for evidence of the existing applicable rule. The effort of both is to ascertain that rule. (28) General common law "was common to, and authoritative in, every common law jurisdiction whose courts struggled to discern it, but it had no single source, and hence no single authoritative interpreter." (29)

      As with its supposedly superior position, general common law's unorthodox provenance was a direct affront to positivist principles. Positivism denies that legal norms can exist without a specific state author. As Justice Holmes wrote in dissent in a prominent pre-Erie case, "In my opinion the authority and only authority is the State, and if that be so, the voice adopted by the State as its own should utter the last word." (30) Thus, there is Missouri law, and French law, but not "the common law of contracts."...