Justice Washington and the Erie Doctrine

Everyone knows that Erie R.R. Co. v. Tompkins overruled Justice Story’s 1842 opinion in Swift v. Tyson and held that federal courts hearing cases in diversity jurisdiction should use the applicable substantive state law on matters involving contracts, torts, and other common-law subjects. People also usually learn that Holmes was a sharp critic of Swift v. Tyson during his tenure on the Court.

What you may not know, though, is that Bushrod Washington appears to be the first judge who articulated why the Erie doctrine made sense and why Swift did not. I learned this from reading something by Robert Jackson that cites Washington’s 1814 circuit opinion in Golden v. Prince. In Prince, Washington was called upon to interpret the same provision of the Judiciary Act of 1789 that was later read by Swift to empower federal courts to create their own general common law.  Here is what Washington said in rejecting that suggestion (it’s a long passage):

The powers bestowed by the constitution upon the government of the United States, were limited in their extent, and were not intended, nor can they be construed to interfere with other powers, before vested in the state governments; which were, of course, reserved to those governments impliedly, as well as by an express provision of the constitution. The state governments, therefore, retained the right to make such laws as they might think proper, within the ordinary functions of legislation, if not inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the constitution of the United States, or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries, under those laws, or in the courts of that state. The establishment of federal courts, and the jurisdiction granted to them in certain specified cases, could not, consistently with the spirit and provisions of the constitution, impair any of the obligations thus imposed by the laws of the state; by setting up in those courts a rule of decision, at variance with that which was binding upon the citizens, if the suit had been instituted in the state court. Thus, the laws of a state affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which, in themselves, are free from all constitutional objections; are equally valid and obligatory within the state, since the adoption of the constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power, in all their relations to society; and consequently cannot, in cases where they apply, cease to be rules by which the conduct of those individuals is to be decided, when brought under judicial examination, whether the decision is to be made in a federal or state court.

The injustice, as well as the absurdity of the former deciding by one rule, and the latter by another, would be too monstrous to find a place in any system of government. Thus, for example, if the laws of a state, which regulated the distribution or transmission of property in the year 1789, should be totally varied by a subsequent law, the latter only would be the rule by which property could be distributed or transmitted from the time the law came into operation; and it can never be seriously contended, that a person inter- ested in this property, and from the adventitious circumstance of his residence in another state, entitled to make his claim, either in the federal or state court, should recover more by resorting to the former, than he would have recovered had he applied to the latter court.

With respect to rules of practice for transacting the business of the courts, a different principle prevails. These rules are the laws of the court and are, in relation to the federal courts, laws arising under the constitution of the United States, and consequently not subject to state regulations. It is in reference to this principle, that the 17th section of the same judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power, the different circuit courts, at their first sessions, adopted the state practice as it then existed, which continues to this day, we believe, in all the states, except so far as the courts have thought proper, from time to time, to alter and amend it Indeed, the counsel for the plaintiff, in this case, seemed to admit the distinction between general laws affecting rights, and those which relate to the practice of the courts; but still he contended, that the act of assembly in question, afforded no rule of decision for this court and could not be pleaded in bar of the action, because it was enacted since the year 1789. Now, it is most clear, that a law which discharges a contract is no more a law of practice, than one, under the sanction of which, the contract was made. If it would bar the action in a state court it would equally do so in a federal court; although the particular mode of setting up the bar, might depend upon the practice and rules imposed by the state laws upon the former courts, and those which the latter may have thought proper to adopt.

This is the Erie doctrine, stated succinctly more than a century before Justice Brandeis did so for the Supreme Court. Pretty remarkable.

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3 Responses

  1. Francisco Forrest Martin says:

    Prof. Magliocca,
    It appears that you are misinterpreting Golden v. Prince. Washington’s opinion is consistent with Story’s opinion in Swift v. Tyson in that both are correctly applying the voluntary law of nations –specifically, the lex mercatoria embodying the comity of nations principle. See Martin, The Constitution as Treaty 193-96 (Cambridge Univ. Press 2007). Brandeis overreached in Erie by rejecting Swift.

  2. Gerard says:

    Thank you for this. I’ll post a reply when I return from my trip.

  3. Gerard Magliocca says:

    Couple of thoughts on this. First, I was not commenting on the holding in Golden v. Prince, which addressed bankruptcy law and may well have been consistent with Swift. Second, I do not have a strong view on whether Erie was correct as a matter of statutory or constitutional law. Third, Washington was not against all federal common law, as he was quite supportive of federal criminal common law until the Supreme Court rejected that doctrine in the 1810s.