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Wednesday, January 02, 2013

Erieblogging: Day Two

In honor of the 75th anniversary of Erie Railroad Co. v. Tompkins, I’m posting an un- or underexplored question about Erie each day for the whole month. (Note: I’ll be parallel posting these on Michael Steven Green’s CivPro Blog.)

Today’s question(s): In Swift v. Tyson, Justice Story said that a federal court could come to its own conclusion about the common law of commercial paper prevailing in New York. But imagine that just before Swift was decided, the highest court of appeals in New York had issued an opinion in which it stated unequivocally that its decisions were binding upon federal and sister state courts when entertaining all common law cases arising in New York. Would Story have argued differently in Swift and concluded that New York state court decisions must be respected?

Conversely, in Erie Justice Brandeis said that a federal court should respect Pennsylvania Supreme Court decisions concerning Pennsylvania common law. Assume that just before Erie was decided, the Pennsylvania Supreme Court had issued an opinion in which it stated unequivocally that its decisions about Pennsylvania common law were not binding upon federal and sister state courts when entertaining common law cases arising in Pennsylvania.  Federal and sister state courts were free to come to their own conclusions about what the common law in Pennsylvania is. Would Brandeis have argued differently in Erie and concluded that the Pennsylvania Supreme Court's decisions did not have to be respected?

If the answer to the two questions above is yes, then it seems that the disagreement between Swift and Erie is not about federal courts’ constitutional obligations at all. It is simply a disagreement about state law, namely whether, under a state's law, a federal court is bound by the state supreme court’s decisions when adjudicating a common law case arising in the state. (That is what I argue in Law’s Dark Matter.)

Posted by Michael Steven Green on January 2, 2013 at 02:59 PM in Civil Procedure | Permalink

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