If You Were at Temple Law Today
You could come to my colleague Craig Green’s presentation on “Repressing Erie’s Myth.” I think it is a fascinating project, and I asked for his permission to share the abstract with our readers. It follows below the jump.
The doctrinal influence of Erie — one the most “iconic” cases in US law — has grown unduly large as a descriptive matter, with arguably perverse effects in areas ranging from the Alien Tort Statute, to military commission procedures, to habeas-stripping statutes. The article has three parts:
Part I seeks to scale Erie back on its own terms. Erie held that federal courts should generally apply state substantive law. That reversed a 95-year-old view of the Rules of Decision Act and held that pre-Erie tolerance for “federal general common law” was unconstitutional. Erie’s constitutional arguments are dubious, despite their eminent defenders (e.g., Ely, Friendly, Kurland, Mishkin, Pollak, Frankfurter, Brandeis, and Holmes). What’s most important, however, is that — until recently — Erie could be seen as either (1) a case to fix a bad statutory interpretation, or (2) a cornerstone of Our Federalism, with deep significance for federal and state law, and federal and state courts. Regardless, however, Erie was not predominantly a separation of powers case concerning federal courts’ inherent limitations.
Part II explores the illegitimacy of Erie as an independent limit on federal judicial power in contexts outside diversity jurisdiction, the Rules of Decision Act, federalism, and other matters relevant to Erie and its progeny. The Court has already made one recent error applying Erie. Two others might be on the horizon.
1. Sosa v. Alvarez-Machain concerned the Alien Tort Statute of 1789. (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”) The question was whether, given that purely jurisdictional statute, anyone could actually sue for “violation[s] of the law of nations.” Whence the cause of action? In analyzing that issue, the Supreme Court divided on particulars, but all nine Justices agreed that Erie-based skepticism about “federal common law” was analytically vital. Every commentator since Sosa has accepted that premise. I have doubts. There are few direct state/federal concerns in Sosa, and the Rules of Decision Act does not frontally pertain. Erie — even as a mythic icon — should not affect interpretation of the ATS, or federal courts’ ability to hear private lawsuits thereunder. To be clear, my dispute isn’t with Sosa’s result, except insofar as it rests on Erie. There are important fights about the ATS, concerning critical values of domestic and international law. All of those values are masked, rather than illuminated, by invoking Erie’s myth.
2. Hamdan v. Rumsfeld is a pending SCt case concerning military commissions’ validity and procedural requirements. Hamdan argues that the President lacks authority to try detainees in military commissions without clearer congressional authorization. If that’s wrong, it’s because the President has a nonstatutory authority to hold military commissions. The Court has described a military commission as “our common-law war court. It has no statutory existence, though it is [implicitly] recognized by statute law.” Erie should — and is generally thought to — be irrelevant in determining whether federal courts can recognize such non-statutory or quasi-statutory presidential authority. It should also be irrelevant to whether courts can apply common-law procedural limits to military commission proceedings, e.g., the right to confront witnesses or to be present at all stages of the proceeding. Hamdan argues that federal courts should, even absent statutory authorizing legislation, apply certain Geneva Convention requirements to military commissions. He could also invoke “pure” common-law fairness norms as restraints on commission procedures. Such arguments may succeed or fail on their merits. But what must be avoided is any effort to invoke iconic Erie-based norms against “federal common law.”
3. The Detainee Treatment Act of 2005, by its terms, removed habeas jurisdiction for aliens held by the Defense Dept at Guantanamo Bay. The Act separately provided “exclusive jurisdiction” for such detainees to obtain review of their confinement before the DC Circuit. Bush issued the following signing statement: “[N]oting that the text and structure of [the DC Circuit review provision] do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action.” Accordingly, “the executive branch shall construe [the Act] to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in [the Act].” Briefs will soon explain the President’s position. The ATS case, Sosa — which also concerned a purely jurisdictional statute — will likely be debated. And Erie may again be offered up as a bulwark against any judicial review that smacks of “federal common law.” That would be a mistake.
Part III suggests that Erie’s (excerpted) catchphrase “there is no federal . . . common law” is superficially appealing, but ultimately misplaced as a rubric for analyzing judicial power. Still, as the proverb goes, you can’t beat something with nothing. The persistent and now potentially rail-jumping myth of Erie illustrates the allure of, and perhaps need for, a general architecture for Congress-Court relations. If not Erie, what should we use? i suggest transforming Jackson’s Steel Seizure Case test. That opinion, which dealt with presidential power, laid out three logical options. For a particular presidential action, Congress may have (i) authorized that action, (ii) forbidden that action, or (iii) remained effectively silent. Confronted with those three possibilities, Jackson (obviously) said that the President’s power is greatest when authorized, least when forbidden, and uncertain (a “zone of twilight”) in congressional silence.
Applying that approach to courts may prove (surprisingly) apt. When Congress tells courts to do something, the latter’s actions are maximally legitimate. When Congress tells courts not to do something, the latter’s actions are maximally dubious. And when Congress has not spoken, there is ample room for gray-shaded analysis of context, history, function, and other factors in deciding whether a federal court’s “common-law” actions are legitimate. I tend to think that, with respect to military commissions and habeas-stripping, relevant contextual factors tend to legitimate judicial activity. But even for those who disagree with those results, everyone might at least concur that Erie’s jurisprudential overgrowth merits trimming before it does jurisprudential mischief. Erie’s myth — which has dominated law schools for nearly seventy years — has mutated from conventional orthodoxy into something much more dangerous. Now is the time to stop that mutation, which may oversimplify hard questions with potentially serious results.
I’m sure that Craig would welcome your comments or suggestions.