30 March 2013

2. Erie: Federal Withdrawal from American Common Law

Part 1

Eventually, the flaws in the American common law system began to cause problems. The most well known example of this was probably the incongruities between State and federal interpretations of law in matters which came into federal courts requiring an interpretation of a State’s laws. A State supreme court and federal courts would look at stare decisis in that particular State and develop conflicting interpretations of that State’s precedents. In a functional common law system the court later in time should have followed the decision of the earlier court regardless of the fact that they were in different parts of the American judicial system. As well, a functional common law system would have a higher court capable of resolving any differences that arose between a State and federal court regarding that particular State’s law. Instead, the conflicting interpretations continued and led to manipulation of the judicial system. If federal precedent of Georgia’s law was favorable and the Georgia Supreme Court’s precedent was not, the party who wanted federal jurisdiction would do everything it could to get into federal court and the party favored by Georgian precedent would fight just as hard to stay in Georgian courts.

Eventually, this came to be such an issue that the United States Supreme Court, sua sponte, decided that federal courts must follow a State courts’ precedents when deciding an issue dependant upon State law. This is the rather famous Erie Railroad Co. v. Tompkins case which is often described as the end of federal common law.

More accurately, the Erie decision was a withdrawal from the common law project. The federal courts would still be bound by cases from State courts and those State courts were still part of the common law project, but federal decisions about State law would only be binding, even in federal court, in so far as that State’s appellate courts had not spoken on the matter. If the 6th Federal Circuit had ruled that the common law crime of snipe hunting was illegal after dark and the Kentucky Court of Appeals chose to ignore the federal case and ruled that snipe hunting was actually only illegal in the afternoon, the decision from the Kentucky Court of Appeals overruled the federal court, even in federal court.

The case was a triumph of American federalism and a body blow to American common law. The one legal entity capable of making one American common law had abandoned the project. Imagine a different outcome wherein the Federal Supreme Court had embraced the common law and ruled that the federal courts had the final say under a due process theory (i.e. It is fundamentally unfair for a citizen to be subject to the whims and vagaries of a multiplicity of interpretations for which he cannot possibly have the notice of all as he passes from state to state. Therefore, American common law requires that federal interpretations preempt any and all state decisions to the contrary). Such a decision would have radically altered American jurisprudence and given us much more of a single law system. However, post-Erie, the States were left to wander in the common law wilderness without anyone to decide who was correct when their precedents contradicted each other.

Subsequently, States, left with no way to resolve their differences under the American common law as it stood, turned to extra-governmental entities for a solution.

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