A Critical Guide to Erie Railroad Co. V. Tompkins
Nelson, Caleb, William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. THE RELATIONSHIP BETWEEN STATE AND FEDERAL COURTS BEFORE ERIE A. The Bottom Line B. Were People Crazy Then? 1. The Nature and Sources of Unwritten Law 2. Who Should Defer to Whom About What? a. Deference on Questions of "Local" Law b. Non-Deference on Questions of "General" Law II. JUSTICE BRANDEIS'S ARGUMENTS IN ERIE A. Justice Brandeis's Historical Argument B. Justice Brandeis's Practical Arguments 1. The Murkiness of the Distinction Between "General" and "Local" Law 2. Disuniformity and Forum Shopping 3. "Discrimination" Against Citizens of the Forum State C. Constitutional Arguments CONCLUSION
No informed observer has ever been in doubt about the importance of Justice Brandeis's opinion in Erie Railroad Co. v. Tompkins. (1) Almost as soon as it was issued, the cognoscenti were calling it a "transcendently significant opinion," (2) a "thunderclap decision," (3) and "one of the most dramatic episodes in the history of the Supreme Court." (4) Seventy-five years later, Erie remains an "iconic case"--one that "every lawyer knows ... by name" and that "is thought to express something basic about the United States legal system." (5) Above and beyond its immediate holding (which is obviously important in its own right), Erie has become the starting point for many modern arguments about federalism and the separation of powers.
Unfortunately, Erie is a shaky foundation for legal reasoning. From the standpoint of technical, lawyerly craftsmanship, Justice Brandeis's opinion has many vices. It relies on contestable premises that it does not make explicit. It delivers grand statements that are misleading in the absence of careful qualification (which it does not supply). Upon close examination, some of the arguments that it endorses fall apart entirely, and others are--at best--much more complicated than it acknowledges. Insofar as it purports to rest on the Constitution, moreover, it advances arguments so cavalierly and impressionistically as to impede responsible analysis. In the words of a contemporaneous student note, "The opinion in Erie Railroad v. Tompkins lacks much of the precision which an important reexamination of constitutional distribution of power might be expected to contain." (6)
None of this means that Erie's bottom line is necessarily wrong. But lawyers and law professors who seek to extend Erie's analysis need to recognize the shoals concealed in Justice Brandeis's opinion. It is easy to overread Erie, and it is also easy to find apparent support in Erie for propositions that are false.
Precisely because Erie is so iconic, of course, it has been analyzed exhaustively. In recent years, revisionist scholars have made great strides in understanding both Erie and what came before Erie. To criticize Justice Brandeis's opinion in light of this new learning is surely unfair. But it is still worth doing, because Erie's status in our legal firmament makes it crucial to understand exactly what Erie held and how that holding might be supported.
Erie addressed one of the recurring questions of American federalism: What is the status in federal court of precedents established by the courts of a particular state? Throughout our history, the answer has depended on what the precedents are about; federal courts have always felt more need to defer to a state's highest court about certain aspects of the state's own law than about the law of other sovereigns. Before Erie, however, federal courts drew the crucial lines in different places than they do now.
As background for analysis of Justice Brandeis's opinion, Part I of this Article provides a brief account of the doctrine that prevailed before Erie. Part II then evaluates each of the main arguments--historical, practical, and constitutional--that Justice Brandeis advanced in support of his claim that federal law required a different doctrine. …