A Critical Guide to Erie Railroad Co. v. Tompkins
University of Virginia School of Law
March 13, 2012
William & Mary Law Review, Vol. 54, 2012
Virginia Public Law and Legal Theory Research Paper No. 2012-35
This paper -- part of William & Mary's recent symposium on "Law Without a Lawmaker"-- tries to provide a concise but comprehensive analysis of Justice Brandeis's various arguments in Erie. Consistent with much of the new learning about Erie, the paper concludes that Justice Brandeis's historical argument is wrong, that his constitutional argument is highly suspect, and that even his practical arguments are less clear-cut than he suggested. The paper does not claim that anything in written federal law FORECLOSES the conclusion that Justice Brandeis reached in Erie. But the paper argues that nothing in written federal law COMPELS that conclusion either. Ironically, the Erie doctrine probably is best characterized as what modern lawyers call "federal common law."
Number of Pages in PDF File: 41
Keywords: Erie, Swift v. Tyson, common law, general law, unwritten law, Holmes, Brandeis, Rules of Decision Act, horizontal uniformity, vertical uniformity, state constitutional lawAccepted Paper Series
Date posted: March 13, 2012 ; Last revised: August 5, 2012
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