Monday, March 2, 2015
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Books written about any branch of the common law treat it as a unit [and] cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately …. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State ….
If a lot of these quotes sound familiar, it may be because Justice Brandeis used them liberally in Erie Railroad v. Tompkins, where he wrote the opinion overruling Swift. Black & White Taxicab v. Brown & Yellow Taxicab, in fact, was Brandeis’ Exhibit A for Swift’s “mischievous results.” And everyone from first-year law students to Supreme Court Justices have been struggling with Erie ever since.
While White & Gold v. Blue & Black may have temporarily broken the internet, Black & White v. Brown & Yellow helped to recast judicial federalism as we know it. But rest assured that if the White & Gold dress reincorporates in Tennessee so it can sue the Blue & Black dress in federal court, you’ll hear it here first.
[Cross-posted at PrawfsBlawg, where I’ll be guest-blogging this month]