Academic journal article William and Mary Law Review

A Critical Guide to Erie Railroad Co. V. Tompkins

Academic journal article William and Mary Law Review

A Critical Guide to Erie Railroad Co. V. Tompkins

Article excerpt

II. JUSTICE BRANDEIS'S ARGUMENTS IN ERIE

Federal courts applied the doctrine described in the previous Part until 1938. In that year, however, Justice Brandeis's opinion in Erie instructed federal judges to follow state-court precedents on all questions that lie within the states' legislative competence, even if those questions would previously have been classified as matters of "general" law. (78) Brandeis left various details to be worked out in later cases. (79) But on the basic issue raised in Erie itself, Brandeis's opinion was clear: within the limits of the states' lawmaking powers, precedents that a particular state's highest court had established and to which it continued to adhere were to have the same status in federal court as statutes enacted by the state's legislature.

Justice Brandeis advanced three different categories of arguments for this conclusion. First, he argued that Justice Story's opinion in Swift v. Tyson had misinterpreted section 34 of the Judiciary Act of 1789 and that the original meaning of the statute compelled the result in Erie. (80) Second, he observed that "the doctrine of Swift v. Tyson" was having bad effects in practice. (81) Third, he argued that the course pursued by the federal courts under Swift was "unconstitutional[ ]" (and, seemingly relatedly, that it rested on a "fallacy" about the nature of law). (82) This Part examines each of those arguments in turn.

A. Justice Brandeis's Historical Argument

Justice Brandeis opened with an argument about history. As mentioned above, section 34 of the Judiciary Act of 1789 had specified that "the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." (83) (By the time of Erie, this statutory provision was known as the "Rules of Decision Act" (84) and was found at section 721 of the Revised Statutes of 1874. But section 721 of the Revised Statutes was substantively identical to section 34 of the original Judiciary Act, and Justice Brandeis's opinion therefore referred throughout to section 34.) In Swift v. Tyson, Justice Story had held that the phrase "laws of the several states" in section 34 covered (1) written state laws, (2) "long established local customs having the force of laws," and perhaps (3) settled precedents of the state courts about the content of these "local" laws, but not (4) decisions of the state courts on "questions of a more general nature," such as "questions of general commercial law." (85) According to Justice Brandeis, however, "the more recent research of a competent scholar" had "established" that "th[is] construction ... was erroneous" and that section 34 had been intended to make federal courts follow state-court precedents about the "general" aspects of the state's unwritten law as well as the "local" aspects, (86) The "competent scholar" whom Brandeis cited was Charles Warren, who had unearthed new information about the drafting history of section 34.s7 Warren had located ("in the attic of the Capitol") the original version of the Judiciary Act as introduced in the Senate, and he had also located ("in a cellar room, under a heap of miscellaneous papers of confused and intermingled dates and subjects") a copy of the bill as approved by the Senate and sent to the House. (88) Warren saw that section 34 did not appear in the former document but did appear in the latter document, meaning that it was added at some point during the Senate's consideration of the bill. (89) What is more, Warren found evidence of the amendment that added it. Among other "odd, loose slips of paper of different sizes and shapes" that set forth proposed amendments to the judiciary bill and that had been "preserved in a bundle, in the Senate Files [in the Capitol's attic]," (90) Warren discovered a sheet--apparently in the handwriting of Senator Oliver Ellsworth (91)--setting forth both a draft of what became section 34 and the edits that produced the final version. …

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