Thursday, January 03, 2013
Erieblogging: Day Three
I’m posting an un- or underexplored question about Erie Railroad Co. v. Tompkins every day this month.
Today’s question: There are two possible interpretations of Justice Brandeis's opinion in Erie: a) the Pennsylvania Supreme Court’s decisions concerning Pennsylvania common law are binding on a federal court whether or not the Pennsylvania Supreme Court wants them to be binding, or b) the Pennsylvania Supreme Court’s decisions concerning Pennsylvania common law are binding on a federal court to the extent that the Pennsylvania Supreme Court wants them to be binding.
Yesterday I suggested that the correct interpretation may be b. If so, whether a federal court should defer to a state supreme court’s decisions concerning the state’s common law should be answered on a state-by-state basis. The approach of Swift v. Tyson would be appropriate for a state whose supreme court wishes federal courts to come to their own judgments about the common law prevailing in the state. (That a state supreme court might take such a position is not a purely theoretical issue. Nine years before Erie was decided, the Georgia Supreme Court adopted a Swiftian view of the common law in Slaton v. Hall. 148 S.E. 741 (Ga. 1929). And Slaton is still good law in Georgia.)
But Brandeis does not hint in his opinion in Erie that a state-by-state approach is appropriate. He says that a state supreme court's decisions are binding on federal courts, period. So maybe the correct interpretation is a. If it is, however, where is Brandeis’s argument that a state supreme court lacks the power to release federal courts of the duty to respect its decisions? (I take a stab at providing such an argument in Erie’s Suppressed Premise.)
(Note: This is parallel posted on Michael Steven Green’s CivPro Blog.)
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