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Tuesday, January 01, 2013

Erieblogging: Day One

It is 2013 — 75 years since the Supreme Court decided Erie Railroad Co. v. Tompkins. Oral argument for Erie was on January 31, 1938 and the case was decided on April 25.  Articles on Erie often begin with an apology for revisiting matters that have been covered so well before. That’s nonsense. So many questions about Erie remain un- or under-explored, I can post a new one each day for the whole month of January.  (Note: I’ll be parallel posting these on Michael Steven Green’s CivPro Blog.)

Today’s question: As we all know, Erie overturned Swift v. Tyson.  In Swift, Justice Story said that a federal court could come to its own conclusion about the common law of commercial paper prevailing in New York. What law did Story think was at issue in Swift: a) federal common law, b) New York common law, or c) a brooding-omnipresence common law not identifiable with any particular jurisdiction?

We were all taught in Civil Procedure that the answer is c (or sometimes a). That is also the answer one almost always gets in law review articles. The correct answer, however, is b.  To see why, imagine that the event at issue in Swift had occurred, not in New York, but in a civil law jurisdiction like Louisiana, or in a jurisdiction that could not be characterized as having a civil or common law system, such as a Native American tribe. Story would have denied that the federal court was empowered to come to its own conclusion about the prevailing legal rule. That means that Story thought that the federal court in Swift had its interpretive power because New York officials, by adopting a common law system for the state, gave it this power. And that means that Story thought that the law applied in Swift was New York law. The power the federal court had was delegated to it by New York officials. For a more detailed version of this argument, see Part One of my article Law’s Dark Matter and Part One of Caleb Nelson’s article A Critical Guide to Erie Railroad Co. v. Tompkins, both forthcoming in the William and Mary Law Review.

Posted by Michael S. Green on January 1, 2013 at 02:48 PM in Civil Procedure | Permalink


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A bit more about Francisco's comment. One disagreement he may have with my post concerns the circumstances in which a court would assume that a jurisdiction had accepted the law merchant. He says that it would be attributed to a jurisdiction that was neither common law nor civil. But that isn't so (at least by a US court). See, e.g., Aslanian v. Dostumian, 54 N.E. 845, 846 (Mass. 1899) (law merchant not assumed to apply to transaction in the Ottoman Empire). The same point is true of Indian tribes. He may be right, however, that the law merchant would be presumed to apply in a civil law jurisdiction, in the sense that, in the absence of any evidence of what the positive law of a civil law jurisdiction was, a court would assume that the law merchant was in force in that jurisdiction.

Three responses: 1) That doesn't change my point that the law merchant/general commercial law was conceived of as state law. A court would attribute it to a jurisdiction only if the court concluded that it had been accepted by officials in that jurisdiction. 2) The general common law beyond the law merchant (for example, the general common law of torts, which was developed in the wake of Swift) was presumed to apply in a jurisdiction only if officials in that jurisdiction had chosen to adopt a common law system. It was not presumed to apply in civil law jurisdictions. 3) Even if a federal court presumed that the law merchant applied in a civil law jurisdiction, that does not mean that it felt itself empowered to ignore decisions of the civil law jurisdiction's courts concerning the content of the law merchant in that jurisdiction.

Posted by: Michael Steven Greeen | Jan 2, 2013 4:02:30 PM

Francisco -

True, Story did not say that the law he was applying was New York law. But the question is whether he was thought it was New York law. And my argument is that he did - he was committed to its being New York law based on other things that he said or would say. What he called the general commercial law (or the lex mercatoria) is a standard that may or may not be the law of a particular place. And Story thought that the reason that it was the law in New York was because it was accepted by New York officials (when they chose to become a common law jurisdiction). New York officials had control over whether the standard was binding in New York and that makes it New York law. If federal officials had control over the matter, it would be federal common law. If no one did - in the sense that it was the law in New York no matter what any official said or did - it would be a brooding omnipresence. By saying that the lex mercatoria is positive law, my guess is that you agree with me.
Bruce - I think this answers your question too, but let me know if not.

Posted by: Michael Steven Greeen | Jan 2, 2013 2:29:45 PM

I'm not sure I understand the argument, although I haven't had time to sit down and read both Part I's cited above carefully. Why isn't it possible that the Swift Court viewed the common law to be the same common law everywhere there *was* common law? E.g., everywhere you find gold, gold is composed of gold atoms. But that doesn't mean silver is composed of gold atoms.

Posted by: Bruce Boyden | Jan 2, 2013 1:44:44 PM

I believe that you are mistaken. The Swift Court held that the New York case law governing negotiable instruments was not New York common law. Instead, the Swift Court applied the lex mercatoria -- which is the voluntary law of nations governing commercial transactions. (We now call the voluntary law of nations "general principles of law recognized by civilized nations.") Such voluntary law of nations was applied by both federal and state courts (including New York) and is still applied by federal courts (in, e.g., general maritime law). Also, it would apply in state civil law jurisdictions and non-civil/common law jurisdictions. Although such voluntary law of nations has a natural law flavor, it is still considered to be positive law.

Posted by: Francisco Forrest Martin | Jan 2, 2013 12:43:46 PM

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