fbpx

Unplug Erie Railroad

Over the coming weeks, I’ll dedicate several posts to the proposition that Erie Railroad Co. v. Tompkins (1938) must be overruled, or otherwise put out of its misery. One cannot get the United States Constitution right unless one starts with the proposition that every single sentence in Erie Railroad is wrong.

Much of what’s coming is stripped from The Upside-Down Constitution. I fear that many readers will skip the book’s long chapters on Erie. It’s a boring personal injury case, and its holding seems unexceptional: in “diversity” cases among parties from different states, federal courts will follow the rule of decision of the state where they sit (usually, the state where the case was filed). That does not sound like the stuff of which constitutional revolutions are made. But it is, and they are. Here’s the gist of the argument:

The actual Constitution embodies a “competitive” federalism that disciplines government at all levels. The New Deal Constitution, by contrast, embodies a  “cartel” federalism that empowers government at all levels. The central case in that transformation isn’t  Carolene Products, or Steward Machine Co., or West Coast Hotel, or United States v. Darby, or even Wickard v. Filburn (which, to the horror of many of my friends, I believe to be rightly decided).  While the often appalling reasoning in those cases certainly reflects the constitutional New Deal’s cringe-inducing presumptions, one can live with the decisions and still have a sensible federal order. That is not true of Erie Railroad. Accept that case or any of its premises, arguments, and tenets,  and you’ve bought into a cartel federalism that erodes limited government, legal certainty, political responsibility, commerce, and any other virtue one might want to associate with federalism.

Recently, there has emerged a small but forceful band of Erie critics; I’ll discuss their writings in forthcoming posts. However, Erie revisionists face a difficult task. The case is taught as received wisdom in every CivPro and FedCourts class in the country (with intermittent exceptions at Yale and NYU Law School). And there is a yet more potent force of resistance: originalism, in its dominant forms and as conventionally understood. Erie is originalism’s counterpart to Lochner, as incontrovertibly right as Lochner was wrong.  It is cited in the same in terrorem fashion, in cases that have nothing to do with the original legal problem and for the same global proposition: judges shouldn’t make things up. It is not the constitutional text or some hermeneutic theorem but Erie Railroad, a stone that the Founders would have rejected, that has become originalism’s cornerstone.  That, I hope to demonstrate, is a very bad thing.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 20, 2012 at 15:34:13 pm

Erie wasn't taught as "received wisdom" in Civil Procedure at the Univ. of San Francisco Law School between 1971 and 2008 when I taught it there. I have always been sceptical in class about its rationale and its effect. I think, at minimum, the dissenting opinion of Justices Murphy and Rutledge in Guaranty Trust v. York stated a much better rule.

read full comment
Image of Paul McKaskle
Paul McKaskle
on March 20, 2012 at 18:19:48 pm

Alright, It's been quite a while since I went back and reread Erie, and I've always been skeptical of the rule that the law of the forum state governs, but I accepted as a very good thing the rule in Erie that there is no federal common law. Sort of like the rule in Butner v. United States, that property rights are determined by reference to state law (as opposed to letting some wild hare Bankruptcy Judge decide what your client's lien rights are by looking through the prism of "equity"). I'll be interested to know just why that particular part of Erie is wrong. Or have I misremembered Erie?

read full comment
Image of Daniel Artz
Daniel Artz
on March 21, 2012 at 10:03:46 am

Professor Greve, I am wondering how one can decide this case without knowing, to begin with, whether the object that struck Tompkins was a secured part of the train or a part of the train that was not secured due to negligence?

read full comment
Image of Nancy D.
Nancy D.
on March 21, 2012 at 11:03:57 am

"Wickard v. Filburn (which, to the horror of many of my friends, I believe to be rightly decided)."

If your judgement on this topic is as poor as your judgement on the commerce clause, we have little to learn from you.

read full comment
Image of Walter Sobchak
Walter Sobchak

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.