41 Pages Posted: 13 Mar 2012 Last revised: 5 Aug 2012
Date Written: March 13, 2012
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."
Keywords: Erie, Swift v. Tyson, common law, general law, unwritten law, Holmes, Brandeis, Rules of Decision Act, horizontal uniformity, vertical uniformity, state constitutional law
Suggested Citation: Suggested Citation
Nelson, Caleb, A Critical Guide to Erie Railroad Co. v. Tompkins (March 13, 2012). William & Mary Law Review, Vol. 54, 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-35. Available at SSRN: https://ssrn.com/abstract=2021489
By Jack Balkin