Life After Erie:

What happens on the day after Erie is overturned?

Erie Railroad Co. v. Tompkins is a foundational case for American lawyers, and it's one of the Supreme Court's greatest mistakes. Rather than rejecting "federal common law," Erie and its progeny actually created the category, discarding along the way a crucial concept of "general law" foundational to our constitutional structure. I've argued at length that this was an intellectual and practical mistake, particularly in my paper on "Finding Law," and I've tried to identify its consequences for statutory interpretation, personal jurisdiction, individual rights, originalism, and constitutional argument generally.

On November 1, I was privileged to give a "chair lecture" to mark my appointment as the inaugural Antonin Scalia Professor of Law. (It's a nice Harvard tradition, combining a celebration of a career with attention to scholarship.) So I chose as my topic "Life After Erie," describing what might happen when Erie is finally overturned (speedily, in our days). Here's the introduction:

For those who might be mystified by the title, Erie Railroad Co. v. Tompkins is the most important case that no one who isn't a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts.

As we will see, that proposition is often false. But the problem with Erie isn't this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but "a particular way of looking at law." Erie rejected a category of law—sometimes called general common law, or just "general law"—that was fundamental to our federal system.

This unwritten law was used and produced by legal systems in many different jurisdictions. And while the name "general law" may seem unfamiliar today, it comprised a variety of entirely familiar bodies of law:

• the common law, as inherited from England;
• the principles of equity;
• the rules of admiralty and maritime law;
• the law of nations—not only public international law, governing states and treaties and diplomats, but also private international law, with principles of jurisdiction, choice of law, and international commercial law;
• general parliamentary law, which governs each new House of Representatives before it adopts formal rules;
• military law, including the laws of war;
• and so on.

All these sources, in Judge Fletcher's excellent formulation, were laws for the United States, if not of the United States. General law wasn't "supreme Law of the Land" under Article VI, overriding state law to the contrary. But it was law of the land, which both state and federal governments would employ when no other law controlled.

Now, Erie didn't erase these shared categories of law. But it did suggest that they weren't really shared—that all law in the United States was either state or federal. As Justice Scalia put it in his plurality opinion in Shady Grove, "where neither the Constitution, a treaty, nor a statute provides the rule of decision or authorizes a federal court to supply one, 'state law must govern because there can be no other law.'"

Yet starting with the very day Erie was decided, federal courts have honored this rule only in the breach—inventing "federal common law" that preempts state rules without any textual authority. And their attempts to force all these sources into state and federal boxes have left us unable to understand basic aspects of American jurisprudence:

• the substantive canons of statutory interpretation;
• the scope and force of international law;
• the law governing interstate relations;
• even the fundamental individual rights our Constitution protects.

Moreover, Erie destroyed this part of American jurisprudence for surprisingly bad reasons. The Court held that the prior 150 years of case law were philosophically impossible: that there simply can be no law without a legislator; that just as statutory rules are made by legislatures, common-law rules are necessarily made by judges; that it is the judge's job to make them, whether or not the federal or state constitution vests in them that power; that, in short, the common law necessarily is whatever the judges say it is.

These philosophical claims, by and large, are no longer seen as credible, at least in the academy. But among lawyers and judges they retain a fair deal of influence—I might add, a corrupting influence, one that encourages judges to act, and lawyers to induce them to act, in excess of their true authority.

So, in this talk, I hope to turn from this rather dark picture of Erie to what life will look like after Erie—to how the law will operate on the happy and glorious day when Erie has been overturned.

This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, I hope to set out something of a research agenda—to think through some of the problems overruling Erie may pose, so that when the time comes to reconsider Erie, those who do so will have a clear path to follow.

And the most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge's "office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

Read the whole thing! (Or watch the video, embedded below—and for the TL;DR version, Harvard Law Today has a short summary.)