Can Erie Survive as Federal Common Law
Green, Craig, William and Mary Law Review
A remarkable aspect of this symposium is its self-conscious effort to straddle theory and doctrine. On the theoretical side, our title "Law Without a Lawmaker" gestures toward an abyss of imponderables. If law without lawmakers were even conceivable, who or what would make such law? And if law without lawmakers is not made by anyone, has it somehow existed forever and always? Even explaining law without lawmakers by reference to an arguably lawmaking divinity or social consensus might not save such unmade law from its skeptics.
By contrast, the prospectus accompanying our symposium shifts quickly from theory to Erie. (1) Erie Railroad Co. v. Tompkins is a chestnut among American legal technicians, as it prescribes applicable law for federal courts that exercise diversity and supplemental jurisdiction. Regardless of existential disputes that surround "law without a lawmaker," Erie's doctrinal status is overwhelmingly secure. (2)
Some readers might be unsettled by fusions of high theory and workaday doctrine, yet theoretico-doctrinal analyses of Erie have surfaced throughout the legal academy. For at least two decades, Erie has been the case that launched a thousand ships, as a generation of scholars has sought guidance from Erie about topics ranging from customary international law to state choice of law, from federal common law to jurisprudential theory. (3) Each of these interpretations has characterized Erie not just as an ordinary decision with facts and a holding, but as an iconic representation of broad constitutional or jurisprudential principles.
This Article takes stock of Erie's florescence. To preview my conclusions, I tend to resist most connections between Erie and wider fields of legal doctrine, yet I think that debates over Erie's meaning can illuminate links between legal theory and legal history. Many present-day theorists invoke the cultural authority of doctrinal icons like Erie without identifying connections to the judicial opinion's text, context, original meaning, precedential trajectory, or historical reconstruction. (4) Abstract methodologies like originalism, textualism, and "living" dynamism are familiar when it comes to interpreting statutes, constitutions, or treaties. (5) Yet similar methodologies for interpreting judicial decisions have drawn less attention. (6) This Article will not endorse anything like "originalism for judicial opinions." (7) Instead, I simply propose that expansive applications of Erie--if construed as representative models for interpreting iconic cases---could raise some of the same jurisprudential problems that Erie's theorists wish to solve. This Article also suggests that Erie, like its predecessor Swift v. Tyson, should be understood as an example of federal common law--not as a barrier restricting it.
Part I begins by characterizing Erie as quite a radical decision in its day. I will argue that, even though the Court's reasoning about constitutional federalism was terribly flawed, Erie's result seemed urgently necessary in 1938 and remains vital today. Much of this history is familiar but underappreciated. Lawyers are often taught that Erie is essential, but they less often grasp precisely why or how. (8) Reviewing what Erie said, and why, will create a useful baseline for evaluating various interpretations of the decision.
Part II considers modern theories of Erie that have little textual support in the Court's opinion. Some scholars have proposed that cases like Erie contain "no law" for federal courts to apply other than state law. (9) By these assessments, Erie's result was either inevitable, demanded by right-thinking jurisprudence, or required by constitutional due process. I believe that such theories confuse Erie's result with its justification. Erie famously declared that "[t]here is no federal general common law." (10) But that was a performative edict, not a preexisting reality. On the day before Erie, there was indeed federal general common law; there was a lot of it. …