Justice Iredell, Choice of Law, and the Constitution - a Neglected Encounter

By Collins, Michael G. | Constitutional Commentary, Summer 2006 | Go to article overview

Justice Iredell, Choice of Law, and the Constitution - a Neglected Encounter


Collins, Michael G., Constitutional Commentary


I. INTRODUCTION

In cases governed by state law, federal courts are supposed to apply state law consistent with the state courts' elaboration of it. So says the Rules of Decision Act--originally section 34 of the 1789 Judiciary Act (1)--at least as construed by the modern Supreme Court in Erie Railroad v. Tompkins. (2) Prior to Erie, federal courts exercised considerable independence in the interpretation and administration of state law. The perceived vice of the decision that Erie overturned--Swift v. Tyson (3)--was its unwillingness to apply the unwritten law of the state as declared by its highest court. Erie viewed Swift as holding that the "laws" of the several states which the federal courts were bound to apply under section 34 did not include their decisional law "in matters of general jurisprudence." (4) Modern scholarship, however, has suggested that Swift may have been faithful to early understandings that the "general common law" was something apart from state law (as well as federal law), and thus not subject to section 34's command. (5) Still others have suggested that section 34 was itself a command to the federal courts to apply an amalgam of "American" common-law principles, as opposed to the common law of any particular state. (6)

In the search for the earliest judicial elaborations of section 34, many accounts begin with the Supreme Court's brief (and not particularly well known) opinion in Brown v. Van Braam. (7) There, counsel had argued that the "laws" of the several states referred to in section 34 included a state's common law as well as its statutory law; the Court itself, however, made no reference to section 34 in concluding that state law applied to the case before it. (8) Nevertheless, in an article on which Erie would later rely, Charles Warren emphasized this argument of counsel in Van Braam as evidence of early understandings of section 34 and the role of state law in the federal courts. (9) In addition, the leading book-length study of the framing of the 1789 statute also treats Van Braam as "the first reported civil case citing section 34." (10) And, beginning with its second edition, the Hart & Wechsler Federal Courts casebook has commenced its treatment of section 34 with a note on Van Braam. (11) Echoing Warren, the editors observe that counsel raised a point "of particular interest" when he argued that the "laws" of the states included their unwritten as well as their written law. (12) William Crosskey's elaborate discussion of the federal courts and the common law also begins with Van Braam, but for various reasons, Crosskey discounts its significance for the interpretation of section 34. (13)

These traditional accounts, as well as other accounts, (14) overlook an earlier and far more detailed treatment of this provision and the problem of choice of law in the federal courts: Justice James Iredell's 1795 Circuit Court decision in United States v. Mundell. (15) The decision has managed to fly under the radar of most federal courts scholars, despite its thorough discussion of the application of section 34 to civil cases and the constitutional underpinnings for requiring resort to state law in matters not governed by federal law. (16)

In the course of the opinion, as discussed below, Iredell reaches a number of important and interrelated conclusions. First, he determines that state law, including its common law as well as its statute law, should apply in cases governed by section 34 when federal law is silent. Indeed, Iredell intimates that section 34 simply reinforced what would have occurred in federal court anyway, given the absence of any supreme federal law to displace what he considers to be otherwise applicable state law. In this respect, the decision appears to foreshadow the later conclusions of Erie. Second, he provides a lengthy analysis of the possible sources of the "laws of the several states," and concludes that federal courts should apply the common law of a relevant state, as opposed to some amalgam of "American" law unrelated to a particular state's state law. …

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