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Published online by Cambridge University Press: 02 September 2013
Erie v. Tompkins evidences decentralizing trends in our federal system in two different ways—one fairly obvious and relatively orthodox; the other neither obvious nor orthodox, but probably the more significant. The first aspect may be touched upon very briefly and the ramifications of the second explored more fully.
The obvious side of Erie v. Tompkins lies in its rejection of a common law of the United States available for application by the federal courts in diversity cases. This conception was given expression by Story in Swift v. Tyson, and has been followed in many, if not most, of the succeeding cases building upon and expanding Story's doctrine.
1 Decided April 25, 1938, and reported in 304 U.S. 64; 58 Sup. Ct. 817; 82 Law Ed. 1188. The prevailing opinion was written by the late distinguished member of the Supreme Court, Louis D. Brandeis. A dissenting opinion, in which he was joined by Mr. Justice McReynolds, was written by Mr. Justice Butler. Mr. Justice Reed concurred in a separate opinion, and Mr. Justice Cardozo took no part in either the consideration or decision of the case.
Tompkins, a citizen of Pennsylvania, sued the Erie Railroad for damages sustained by him when he was struck by something projecting from a passing train. The accident occurred in Pennsylvania, and liability, therefore, would normally be determined by the law of Pennsylvania. But suit was brought in New York because the defendant was a corporation organized under the laws of that state, and, in the federal district court for the Southern district of New York, because of the diversity of citizenship. The principal question before the Court was the extent to which it was bound to apply rules of law laid down by the Pennsylvania state courts in analogous situations. On the authority of Swift v. Tyson, decided by the Supreme Court in 1842, the federal trial court held, and the Circuit Court of Appeals affirmed, that it was not bound to follow the state rule. The Supreme Court reversed the lower courts on the ground that Swift v. Tyson must be overruled. Since, in so holding, the freedom of judicial decision by federal courts was restricted, a decentralizing tendency of some sort must be attributed to Erie v. Tompkins.
2 16 Pet. 1; 10 Law ed. 865.
3 In dealing with its own citizens, each state is as much at liberty to develop its own common law as if there were no federal jurisdiction in cases of diversity of citizenship.
4 The elimination of federal courts as well as federal rules would have meant in the instant case that the courts of New York would have been called on to apply the law of Pennsylvania—a simple conflict-of-laws situation.
5 Technically, it is quite proper to refer to the opinion of the Court and the opinion of Mr. Justice Brandeis interchangeably. Mr. Justice Reed was the only member of the majority to place himself on record with a word of caution. It is, however, more than likely that the inarticulate four followed Brandeis with some uneasiness.
6 The significant reference here is, of course, Warren's, Charles article, “New Light on the History of the Federal Judiciary Act of 1789,” Harvard Law Review, Vol. 37, pp. 81–88.Google Scholar
7 The phrase is Friedrich's, Carl. See his Constitutional Government and Politics (New York, 1937), p. 16.Google Scholar
8 Of course, all this is assuming that a relevant state rule has been announced by the state court of last resort. But the law may be in a much more inchoate condition than this when proceedings are instituted in the federal courts. What are the latter to do if the state supreme court arrives at a different version of state law than the federal trial court after the trial court has acted? And what are the federal courts to do if the most recent state judgments are those of inferior state courts? The Supreme Court is willing to admit the obligation of federal courts to adjust themselves instanter to what a state court of last resort does—even if the decision in question is announced subsequent to federal trial but before the federal case is finally disposed of on appeal. Vandenbark v. Owens-Illinois Glass Co., 61 Sup. Ct. 347. But what the obligation of the federal courts may be with respect to the interpretations of state law by inferior state tribunals is not clear. As Professor T. R. Powell has put it, “Are the federal courts to take their state law from a justice of the peace?”
9 1st ed., New York, 1909.
10 Brandeis' documentation is, as usual, beautifully complete. Both the supporters and the opponents of his position are neatly inventoried via foot-notes to the opinion. Without disparaging the quality of the commentary on Erie v. Tompkins which has already appeared, it may be said that the earlier literature assayed by Brandeis had already explored the various facets of the problem to which the former adverts.
11 Martin v. Hunter's Lessee, 1 Wheat. 304.
12 Cf. Second Employers' Liability Cases (1912), 223, U.S. 1.
13 Injunctive relief against the enforcement of a state law will be granted by federal courts only with great caution.
14 The conclusiveness of state court construction of such state legislation is a reasonable principle because the legislation is envisaged by the federal Constitution as governmental regulation which may or may not be legal. In other words, courts approach an exercise of police power, not as a statement of law, but as an exercise of authority which may or may not be in accordance with law. State court construction of local statutes under such circumstances is, therefore, not subject to federal correction, because it is not a question of law which the state court has decided. It would be as inapposite here for the federal courts to “correct” the state courts as it would be for them to correct the state legislatures or executives.
15 The Nature of the Judicial Process (New Haven, 1921), p. 126.
16 The principal reference is to Gelpcke v. Dubuque (1864), 1 Wall. 175.
17 Through Taft, C. J., in Tidal Oil Company v. Flanagan (1924), 263 U.S. 444.
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