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April 7, 2008

Judicial Activism, Acquiesence, and the Erie v. Tompkins Case

I was teaching Erie the other day, and it struck me what a remarkable statutory interpretation case it is.  In 1841, Swift v. Tyson is decided, and holds that, although the Rules of Decision Act requires federal court to apply state "laws" in diversity cases, "laws" only covers state statutes, and so federal courts are free to ignore state common law decisions.  Nearly 100 years go by, and although this interpretation has created huge and notorious problems in the judicial system (different rules apply in many federal courts and so diversity jurisdiction is manufactured to obtain the better rule, for example), Congress does nothing.

Enter the activists, and they hold that "laws" includes statutes and state common law decisions, overruling Swift and, indeed, declaring the Swift approach "unconstitutional" (though not saying, exactly, why).

It seems to me that the case is remarkable when viewed from the perspective of statutory construction: why wasn't the "right' result a declaration that the statute was unconstitutional?  Instead, the court changed its meaning and announced that, as re-interpreted, the statute was no longer infirm.

In dissent, Justice Butler made this point -- though it is typically edited out of civil procedure case books, and for good reason since it belongs elsewhere -- when he wrote: "While amendments to § 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. "

Anyhow, interesting statutory interpretation issue in a case seldom discussed on that point.

April 7, 2008 | Permalink


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