Thursday, February 6, 2014
Prof. Ernest Young (Duke) has posted on SSRN his article, A General Defense of Erie Railroad Co. v. Tompkins, 10 J. Econ. L. & Pol’y 17 (2013). Here’s the abstract:
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision of all time” (Suzanna Sherry). Other scholars, such as Caleb Nelson and Michael Green, have been less damning in their conclusions but nonetheless raised serious questions about Erie’s reasoning. Out in the real world, Erie’s restrictive vision of federal lawmaking has been undermined and circumvented by unfettered executive lawmaking and expansive theories of federal common law.
This article undertakes to rescue Erie from its critics. Rather than reinventing the case’s rationale, I argue that Justice Brandeis’s reasoning was fundamentally sound. Although the case Erie overruled — Swift v. Tyson — was surely correct when decided, Justice Brandeis rightly read the Rules of Decision Act to foreclose the broad practice of “general federal common law” that had arisen by the end of the nineteenth century. And Brandeis was right to worry about divergence between the law applied in state and federal courts sitting within the same jurisdiction. Most important, Erie announced a constitutional principle of judicial federalism — that federal courts may not make law on their own, even in areas where Congress could legislate. This principle forms the intellectual core of modern federalism doctrine, which is primarily concerned with procedural and political limits on national lawmaking.
More ambitiously, I hope that by shoring up Erie’s intellectual foundations this essay may lend support to the vision of limited federal lawmaking that Erie embodied — that is, one in which the federal separation of powers reinforces federalism by limiting the occasions on which federal lawmaking may displace state law. That vision is of more than theoretical import. Its implications may govern practical controversies ranging from the domestic force of customary international law to the preemptive effect of federal regulatory policies on state tort law. Likewise, in an era of resurgent dynamism at the state level, Erie’s respect for the preservation of state prerogatives in the absence of a federal legislative consensus takes on renewed importance.