Erie Railroad Co. v. Tompkins is a foundational case for American attorneys, and it is one of many Supreme Court docket’s biggest errors. Relatively than rejecting “federal common law,” Erie and its progeny truly created the class, discarding alongside the best way an important idea of “general law” foundational to our constitutional construction. I’ve argued at size that this was an mental and sensible mistake, notably in my paper on “Finding Law,” and I’ve tried to establish its penalties for statutory interpretation, private jurisdiction, particular person rights, originalism, and constitutional argument typically.
On November 1, I used to be privileged to offer a “chair lecture” to mark my appointment because the inaugural Antonin Scalia Professor of Legislation. (It is a good Harvard custom, combining a celebration of a profession with consideration to scholarship.) So I selected as my subject “Life After Erie,” describing what may occur when Erie is lastly overturned (speedily, in our days). This is the introduction:
For individuals who may be mystified by the title, Erie Railroad Co. v. Tompkins is a very powerful case that nobody who is not a lawyer has ever heard of. Considered narrowly, it holds {that a} federal court docket, when deciding points topic to state regulation, has to defer to the opinions of state courts.
As we’ll see, that proposition is commonly false. However the issue with Erie is not this slim end result; the issue is its reasoning. Because the Supreme Court docket would later put it, Erie overruled, not only a previous line of circumstances, however “a particular way of looking at law.” Erie rejected a class of regulation—typically known as normal widespread regulation, or simply “general law”—that was elementary to our federal system.
This unwritten regulation was used and produced by authorized programs in many various jurisdictions. And whereas the identify “general law” could appear unfamiliar as we speak, it comprised quite a lot of completely acquainted our bodies of regulation:
- the widespread regulation, as inherited from England;
- the rules of fairness;
- the principles of admiralty and maritime regulation;
- the regulation of countries—not solely public worldwide regulation, governing states and treaties and diplomats, but additionally non-public worldwide regulation, with rules of jurisdiction, selection of regulation, and worldwide business regulation;
- normal parliamentary regulation, which governs every new Home of Representatives earlier than it adopts formal guidelines;
- army regulation, together with the legal guidelines of conflict;
- and so forth.
All these sources, in Decide Fletcher’s glorious formulation, had been legal guidelines for the USA, if not of the USA. Common regulation wasn’t “supreme Law of the Land” beneath Article VI, overriding state regulation on the contrary. However it was regulation of the land, which each state and federal governments would make use of when no different regulation managed.
Now, Erie did not erase these shared classes of regulation. However it did recommend that they weren’t actually shared—that all regulation in the USA was both state or federal. As Justice Scalia put it in his plurality opinion in Shady Grove, “where neither the Constitution, a treaty, nor a statute provides the rule of decision or authorizes a federal court to supply one, ‘state law must govern because there can be no other law.'”
But beginning with the very day Erie was determined, federal courts have honored this rule solely within the breach—inventing “federal common law” that preempts state guidelines with none textual authority. And their makes an attempt to pressure all these sources into state and federal containers have left us unable to know fundamental features of American jurisprudence:
- the substantive canons of statutory interpretation;
- the scope and pressure of worldwide regulation;
- the regulation governing interstate relations;
- even the basic particular person rights our Structure protects.
Furthermore, Erie destroyed this a part of American jurisprudence for surprisingly dangerous causes. The Court docket held that the prior 150 years of case regulation had been philosophically unimaginable: that there merely will be no regulation and not using a legislator; that simply as statutory guidelines are made by legislatures, common-law guidelines are essentially made by judges; that it’s the choose’s job to make them, whether or not or not the federal or state structure vests in them that energy; that, in brief, the widespread regulation essentially is regardless of the judges say it’s.
These philosophical claims, by and enormous, are not seen as credible, at the very least within the academy. However amongst attorneys and judges they maintain a good deal of affect—I would add, a corrupting affect, one which encourages judges to behave, and attorneys to induce them to behave, in extra of their true authority.
So, on this discuss, I hope to show from this reasonably darkish image of Erie to what life will appear to be after Erie—to how the regulation will function on the completely happy and wonderful day when Erie has been overturned.
This isn’t a prediction that Erie will be overturned. Although some authorized seismologists have discerned rumblings in that path, we now have no assure that courts will get issues proper: the arc of jurisprudence doesn’t all the time bend towards mental coherence. Relatively than make predictions, I hope to set out one thing of a analysis agenda—to suppose via among the issues overruling Erie might pose, in order that when the time involves rethink Erie, those that accomplish that can have a transparent path to comply with.
And a very powerful characteristic of life after Erie will not be any explicit doctrines the courts implement, however the angle with which they implement them. To reject Erie is to acknowledge, as Francis Bacon put it, and as Justice Scalia famous in Rogers v. Tennessee, that the choose’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this energy to make regulation is conferred by a statute or a structure, possibly a choose can lawfully wield it. However one hopes that, after Erie, we’ll acknowledge this authority as one which no officers, least of all judges, have any proper to arrogate to themselves.
Learn the entire thing! (Or watch the video, embedded beneath—and for the TL;DR model, Harvard Legislation Right now has a brief abstract.)