Erie Railroad Co. v. Tompkins is a foundational case for American lawyers, and it's one of the Supreme Court's greatest mistakes. Rather than rejecting "federal common law," Erie and its progeny actually created the category, discarding along the way a crucial concept of "general law" foundational to our constitutional structure. I've argued at length that this was an intellectual and practical mistake, particularly in my paper on "Finding Law," and I've tried to identify its consequences for statutory interpretation, personal jurisdiction, individual rights, originalism, and constitutional argument generally.
On November 1, I was privileged to give a "chair lecture" to mark my appointment as the inaugural Antonin Scalia Professor of Law. (It's a nice Harvard tradition, combining a celebration of a career with attention to scholarship.) So I chose as my topic "Life After Erie," describing what might happen when Erie is finally overturned (speedily, in our days). Here's the introduction:
For those who might be mystified by the title, Erie Railroad Co. v. Tompkins is the most important case that no one who isn't a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts.
As we will see, that proposition is often false. But the problem with Erie isn't this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but "a particular way of looking at law." Erie rejected a category of law—sometimes called general common law, or just "general law"—that was fundamental to our federal system.
