Monday, March 10, 2014

New Looks at Erie


Everyone agrees that Erie Railroad v. Tompkins is one of our biggest, most important cases. But beyond that, few people agree on what it means, why it’s important, what its constitutional source--­if any--­is, and whether we should think of it as a good decision or a bad one. For a long time, my view (set out in longer form here) was that Erie was a much simpler case than most people realized. On the facts of the case (an accident involving a train and a pedestrian in Pennsylvania), and given the state of choice-of-law thinking at the time, it was clear that there was only one sovereign that both had the power to regulate and in fact had attempted to do so. That was Pennsylvania. (The federal government might well have had the power to regulate­--certainly through legislation about railroads engaged in interstate commerce, and possibly, though less plausibly, through judicially-created federal common law on the same topic. But neither Congress nor the courts were trying to make such federal rules.) Consequently, the law that governed the case had to be either Pennsylvania law, or law without a sovereign source. Erie disavowed the existence of this latter category of law, which left only Pennsylvania law. There remained only the question of whether Pennsylvania courts’ interpretation of Pennsylvania law should command respect from other courts, and Erie reaffirmed what was already generally understood: they should.

It turns out, though, that there are some further wrinkles.

For one thing, as Michael Green has pointed out, there’s the possibility that Pennsylvania courts don’t want federal courts or courts of other states to follow their interpretations of Pennsylvania law. (This initially struck me as extremely implausible, but it turns out to have pretty good historical grounding, at least with respect to topics understood to fall within the general common law.) For another, there are simply lots of different ways of looking at Erie, some of which make it appear entirely differently from the sketch I set out above. Michael, in an extraordinary feat of endurance, actually spent a whole month (January 2013) blogging a new question about Erie every day. It demonstrates, if nothing else, that, as he puts it “’Erie’ is a code word for a huge set of heterogeneous constitutional and subconstitutional problems that arise from the existence of federal courts (especially federal trial courts) within our federal legal system.”

For an example of this diversity, you could do no better than to look at a recent symposium in volume 10 of the Journal of Law, Economics & Policy. I participated in some of the paper discussions (the symposium grew out of a series of workshops conducted by the American Enterprise Institute), and learned a lot. Anyone who reads this symposium will too. All of the articles are thought-provoking, and no matter how you think of Erie, you’ll find your perspective challenged. Ernie Young, for instance, offers a characteristically thorough and thoughtful defense of the decision, while Suzanna Sherry (who has elsewhere called Erie “the worst decision of all time” describes it as irredeemable. Robert Gasaway and Ashley Parrish likewise find fault with Erie and in fact endorse its precursor, the regime of Swift v. Tyson, as a better way of handling horizontal conflicts of law. (While many of the contributions have a conflict of laws flavor, choice of law fans should be especially happy with Allan Erbsen’s article. Erbsen analyzes Erie more explicitly from the conflicts perspective, disentangling several distinct questions about its purposes and effects.) Sam Issacharoff also questions Erie, focusing on the implausibility of its justifications for overturning Swift. He does not, though, advocate a return to Swift. Instead, he tries to resuscitate that part of Erie based on concern about the regulatory consequences of federal court prohibitory injunctions.

Jeremy Rabkin explores the puzzle of Erie’s reception in the legal community. Why, he asks, were Erie’s progressive supporters, who were solicitous of state authority in domestic commerce, the same people who embraced a rather open-ended presidential power in foreign affairs? And why, more recently, have we seen a shift whereby progressives seeks to import international norms into U.S. jurisprudence, while conservatives invoke Erie as a barrier? And William Hubbard presents the first empirical study of Erie’s effect on vertical forum shopping, using the Supreme Court decision in Shady Grove v. Allstate as a natural experiment.

            Highly recommended.

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