Erie's constitutional source

California Law Review

Volumn 95, Issue SPEC. ISS., 2007, Pages 1289-1312

  Clark, Bradford R ^a,b  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

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EID: 38949158706     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (262)

1. 304 U.S. 64 (1938).
2. Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682, 1688 (1974).
3. See John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 704 (1974).
4. Mishkin, supra note 2, at 1682.
5. Id. at 1685.
6. Id. at 1682.
7. U.S. CONST. art. VI, cl. 2.
8. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1256 (1996) [hereinafter Clark, Federal Common Law].
9. Erie, 304 U.S. at 79 (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)).
10. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.3 (2d ed. 1994) (stating that "[t]he constitutional basis for the Erie decision has confounded scholars");
11. Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 VA. L. REV. 673, 676 (1998) (noting that Erie's "holding has been subject to disagreement and controversy over the years").
12. The "political safeguards of federalism" refer to the role of the states "in the composition and selection of the central government." Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 543 (1954).
13. Erie, 304 U.S. at 78.
14. The analysis of Swift, Erie, and the Supremacy Clause presented in this paper is drawn in part from my earlier writings on the subject. For further analysis, see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1412-22 (2001) [hereinafter Clark, Separation of Powers];
15. Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1474-95 (1997) [hereinafter Clark, Ascertaining];
16. Clark, Federal Common Law, supra note 8, at 1256-64, 1277-92.
17. 41 U.S. (16 Pet.) 1 (1842).
18. Id. at 16.
19. In Coddington v. Bay, 20 Johns. 637 (N.Y. 1822), the New York Supreme Court for the Correction of Errors recognized "[t]he general rule . .. that where negotiable paper is transferred for valuable consideration, and without notice of any fraud, the right of the holder shall prevail against the true owner."
20. Id. at 644-45 (Woodworth, J.). The court, however, concluded that the defendants in Coddington were not entitled to the benefit of the rule because they had not given "valuable consideration" for the notes. Strictly speaking, the question whether the release of a preexisting debt constitutes valuable consideration was not presented in Coddington because the defendants admitted that at the time they received the notes, the persons from whom they received them "were not, in a strict legal sense, indebted to [the defendants] in any amount whatever."
21. Id. at 644 (Woodworth, J.). Nonetheless, several of the opinions suggested that an antecedent debt is not a valuable consideration under the rule.
22. See id. at 648 (Woodworth, J.);
23. id. at 651 (Spencer, C.J.);
24. id. at 655 (Viele, Sen.). Although the Supreme Court for the Correction of Errors had not "pronounced any positive opinion upon" the question when Swift was decided, Swift, 41 U.S. (16 Pet.) at 18, several lower court decisions had ruled in accordance with Coddington's dicta.
25. See, e.g., Payne v. Cutler, 13 Wend. 605 (N.Y. Sup. Ct. 1835);
26. Rosa v. Brotherson, 10 Wend. 85 (N.Y. Sup. Ct. 1833);
27. Wardell v. Howell, 9 Wend. 170 (N.Y. Sup. Ct. 1832). The Court in Swift noted that "the more recent [New York] cases . . . have greatly shaken, if they have not entirely overthrown [the earlier] decisions," 41 U.S. (16 Pet.) at 17, but the Court was willing to assume arguendo that "the doctrine [was] fully settled in New York" that "a preexisting debt was not a sufficient consideration to shut out the equities of the original parties in favor of the holders,"
28. id. at 17-18.
29. Swift, 41 U.S. (16 Pet.) at 19-22.
30. Id. at 18.
31. Id. at 19.
32. See Clark, Federal Common Law, supra note 8, at 1277-92.
33. The law merchant was "a particular system of customs . .. which, however different from ... the common law, is ... allowed, for the benefit of trade," and "which all nations agree in and take notice of." 1 WILLIAM BLACKSTONE, COMMENTARIES *75, *264. Such law was traditionally based on the commercial customs and practices of merchants and was applied by all "civilized" nations to resolve disputes among merchants from different countries.
34. See id. at *75 ("[A] particular system of customs.. . called the custom of merchants, or lex mercatoria ... is ... allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions ...."). Nations and states followed the law merchant in order to facilitate international and interstate trade by establishing uniform rules to govern transactions among diverse citizens.
35. See id. at *264 ("[A]s these are transactions carried on between the subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by ... the law merchant or lex mercatoria, which all nations agree in and take notice of.");
36. ZEPHANIAH SWIFT, A DIGEST OF THE LAW OF EVIDENCE, IN CIVIL AND CRIMINAL CASES, AND A TREATISE ON BILLS OF EXCHANGE, AND PROMISSORY NOTES at ix (Hartford, Oliver D. Cooke 1810) ("In questions of commercial law, the decisions of Courts, in all civilized, and commercial nations, are to be regarded, for the purpose of establishing uniform principles in the commercial world.").
37. See generally Francis M. Burdick, What Is the Law Merchant?, 2 COLUM. L. REV. 470 (1902). William Fletcher points out that "[t]he concept of a uniform law merchant was quite naturally imported into the treatment of commercial law by American courts,"
38. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1518 (1984), because the general common law was regarded at the time as a "great universal law," "regularly and constantly adhered to."
39. BLACKSTONE, supra, at 67.
40. Fletcher, supra note 20, at 1554. Swift made this point explicitly: "It is observable, that the courts of New York do not found their decisions [regarding the adequacy of consideration], upon any local statute, or positive, fixed or ancient local usage; but they deduce the doctrine from the general principles of commercial law."
41. Swift, 41 U.S. (16 Pet.) at 18. On questions of this kind, "the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies,.. . what is the just rule furnished by the principles of commercial law to govern the case."
42. Id. at 19.
43. At the time, New York courts took the same approach. For example, in Coddington v. Bay, 20 Johns. 637 (N.Y. 1822), the New York Court for the Correction of Errors recognized "[t]he general rule ... that where negotiable paper is transferred for a valuable consideration, and without notice of any fraud, the right of the holder shall prevail against the true owner."
44. Id. at 644-45 (Woodworth, J.). The court considered the rule to be "well established,"
45. id. at 647 (Woodworth, J.), and consistent with "the usual course of trade."
46. Id. at 651 (Spencer, C.J.).
47. That the court recognized this rule as part of the general law merchant is suggested by Chief Judge Spencer's observation that the rule "is not only right in itself, but the contrary doctrine would destroy the circulation of notes, and would justly alarm the mercantile world." Id.
48. For example, in Swift, the Supreme Court looked to "the principles established in the general commercial law," rather than to the decisions of New York state courts, in deciding a dispute between citizens of different states arising under the law merchant. Swift, 41 U.S. (16 Pet.) at 18. The Court noted that such decisions "are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed."
49. Id. at 19. Likewise, New York courts considered themselves equally free to disregard the Supreme Court's decisions on questions of general commercial law.
50. See Fletcher, supra note 20, at 1561 ("State courts generally followed common law decisions by the United States Supreme Court, but they were quite explicit in stating that they did not do so because of any legal compulsion.").
51. Just two years after Swift, counsel urged New York's highest court to conform its decision "to the opinion of Mr. Justice Story in the recent case of Swift v. Tyson." Stalker v. M'Donald, 6 Hill 93, 95 (N.Y. 1843). Although recognizing that on "question[s] of commercial law, ... it is desirable that there should be, as far as practicable, uniformity of decision, not only between the courts of the several states and of the United States, but also between our courts and those of England," the New York court declined to follow the rule embraced in Swift and described the Supreme Court as a "tribunal, whose decisions are not of paramount authority" on such questions.
52. Id. at 95, 112.
53. Accord Wain v. Thompson, 9 Serg. & Rawle 115, 122 (Pa. 1822) ("The decisions of the Supreme Court of the United States have no obligatory authority over this court, except in cases growing out of the constitution, of which this is not one.").
54. Fletcher, supra note 20, at 1514.
55. See Lyman D. Brewster, The Promotion of Uniform Legislation, 6 YALE L.J. 132, 140 (1897) (arguing for "statutory unity rather than [judicial] diversity, in matters of common interest").
56. See E. ALLEN FARNSWORTH & JOHN HONNOLD, COMMERCIAL LAW 5 (4th ed. 1985) (noting that "[b]y 1890 every state had at least one statute on negotiable instruments").
57. Chicago v. Robbins, 67 U.S. (2 Black) 418, 428-29 (1862).
58. See TONY FREYER, HARMONY & DISSONANCE: THE Swift & Erie CASES IN AMERICAN FEDERALISM 71 (1981) (observing that "the federal judiciary continued to enlarge the body of general law so that by 1890 it included some 26 doctrines");
59. Erie, 304 U.S. at 75-76 (detailing the expansion of the Swift doctrine).
60. 149 U.S. 368 (1893).
61. Id. at 401 (Field, J., dissenting).
62. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting).
63. 304 U.S. 64 (1938).
64. Id. at 69.
65. Id. at 70.
66. Id.
67. Tompkins v. Erie R.R., 90 F.2d 603, 604 (2d Cir. 1937).
68. See 28 U.S.C. § 1652 (1994) (codifying the current version of the Rules of Decision Act).
69. Erie, 304 U.S. at 71.
70. Id. at 72.
71. Id.
72. (citing Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 51-52, 81-88, 108 (1923)).
73. Id. at 74.
74. Id.
75. Id.
76. Id. at 76.
77. Erie, 304 U.S. at 75.
78. Id. at 77.
79. Id. at 77-78. This statement is significant because Justice Brandeis was a strong proponent of stare decisis, at least in statutory cases.
80. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) ("Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.");
81. see also Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 NW. U. L. REV. 1389, 1415-18 (2005) (discussing the importance of statutory stare decisis).
82. Erie, 304 U.S. at 78. As Professor Ely points out, the Erie opinion "has been faulted for failing to indicate precisely what constitutional provision Swift v. Tyson's interpretation of the Rules of Decision Act violated."
83. Ely, supra note 3, at 702.
84. Erie, 304 U.S. at 79 (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 534 (1928) (Holmes, J., dissenting)).
85. Id. at 80. The fourth part of the Court's opinion remanded the case to the circuit court with instructions to ascertain the precise nature of the duty owed by the defendant to the plaintiff under Pennsylvania law.
86. Id. The circuit court had originally "declined to decide the issue of state law" because it erroneously "ruled that the question of liability is one of general law."
87. Id. For an in depth and insightful history of Erie,
88. see EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA (2000).
89. See, e.g., Charles E. Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 YALE L.J. 267, 278 (1946);
90. Harry Shulman, The Demise of Swift v. Tyson, 47 YALE L.J. 1336, 1344, 1347 (1938).
91. See Robert H. Jackson, The Rise and Fall of Swift v. Tyson, 24 A.B.A. J. 609, 644 (1938) (suggesting that "the Court might well have avoided resort to statutory or constitutional grounds, and placed its decision solely on grounds of sound practice for the Federal courts").
92. Alfred Hill, The Erie Doctrine and the Constitution, 53 NW. U. L. REV. 427, 439 (1958);
93. see also Henry J. Friendly, In Praise of Erie - and of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 385-86 (1964) ("A court's stated and, on its view, necessary basis for deciding does not become dictum because a critic would have decided on another basis.").
94. Lawrence Earl Broh-Kahn, Amendment by Decision - More on the Erie Case, 30 KY. L.J. 3, 57 (1941).
95. Id. at 56.
96. Id.
97. Id. at 31.
98. Arthur John Keeffe, John J. Gilhooley, George H. Bailey & Donald S. Day, Weary Erie, 34 CORNELL L.Q. 494, 524 (1949).
99. Id. at 526. Some modern commentators have made similar arguments.
100. See, e.g., Patrick J. Borchers, The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon, 72 TEX. L. REV. 79 (1993) (suggesting that Erie does not rest on constitutional grounds and should be reconsidered).
101. See Charles T. McCormick & Elvin Hale Hewins, The Collapse of "General Law " in the Federal Courts, 33 ILL. L. REV. 126, 133-36 (1938);
102. T.A. Cowan, Constitutional Aspects of the Abolition of Federal "Common Law, " 1 LA. L. REV. 161, 169-72 (1938).
103. U.S. CONST. amend. X.
104. Erie, 304 U.S. at 78 (internal quotations omitted).
105. Id. at 80.
106. Id. at 78.
107. Id. at 72. Upon reflection, it is not surprising that Justice Brandeis endorsed a vision of limited federal power since he regarded states as useful "laboratories for experimentation." New State Ice Co. v. Leibmann, 285 U.S. 262, 310-11 (1932) (Brandeis, J., dissenting). For an insightful discussion of this idea,
108. see, e.g., DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 85-88 (1995).
109. McCormick & Hewins, supra note 59, at 134.
110. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (holding that Congress has the power to exercise control over intrastate activities that have a close and substantial relation to interstate commerce).
111. Chief Justice Stone, who joined the Erie opinion, apparently was not fully persuaded by the Court's limited view of congressional power: '"[I] do not think it is at all clear that Congress could not apply (enact) substantive rules to be applied by federal courts. I think that Erie Railroad Co. v. Tompkins did not settle that question, notwithstanding some unfortunate dicta in the opinion.'" ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 480 (1956) (quoting Letter from Harlan Stone to Owen J. Roberts (Jan. 3, 1941)).
112. See generally Clark, Federal Common Law, supra note 8, at 1258 (noting the Court's broad grant of federal authority in its Commerce Clause cases and its contemporaneous denial of similar authority in Erie).
113. Goldsmith & Walt, supra note 10, at 677.
114. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress's power under the Commerce Clause extends to certain intrastate activities that, in aggregate, affect interstate commerce).
115. But see Ely, supra note 3, at 703 (stating that the Swift doctrine "was unconstitutional because nothing in the Constitution provided the central government with the general lawmaking authority of the sort the Court had been exercising under Swift").
116. See MASON, supra note 66, at 480-81 (quoting Letter from Harlan Stone to Felix Frankfurter (Apr. 29, 1938)) ("Beyond [the federal courts' unconstitutional assumption of powers] it was unnecessary to go.").
117. See Mishkin, supra note 2, at 1684 n.10 (suggesting that Congress could have used its power under the Commerce Clause to enact a rule of decision act contrary to the result in Erie).
118. Cf. Hill, supra note 52, at 445 (stating that "it seems fair to infer" that Justice Brandeis "meant that Congress has no power to adopt a code of laws governing wholly intrastate questions of contract or tort which would be binding upon the federal and state courts alike").
119. Erie, 304 U.S. at 75.
120. See, e.g., Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 998-99 (1996) (discussing the Fifth Amendment's equal protection component as a possible basis for the Court's decision in Erie);
121. John R. Leathers, Erie and its Progeny as Choice of Law Cases, 11 HOUS. L. REV. 791, 795-96 (1974) (same).
122. Erie, 304 U.S. at 74, 77-78.
123. On the development of Fifth Amendment equal protection jurisprudence, compare LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921) (rejecting an equality-based challenge on the ground that "[t]he Fifth Amendment has no equal protection clause")
124. with Korematsu v. United States, 323 U.S. 214 (1944) (subjecting federal racial classification to equal protection scrutiny for the first time).
125. See also Bradford R. Clark, Judicial Review of Congressional Section Five Action: The Fallacy of Reverse Incorporation, 84 COLUM. L. REV. 1969, 1970-72 (1984) (discussing the origin and development of reverse incorporation).
126. See CHEMERINSKY, supra note 10, § 5.3 (stating that Erie's reference to equal protection "appears to be a rhetorical rather than a constitutional argument because the Supreme Court had not yet applied the requirements of equal protection to the federal government");
127. Ely, supra note 3, at 713 (suggesting that Erie's invocation of equal protection "was a metaphor" for unfairness rather than a constitutional pronouncement).
128. Hill, supra note 52, at 427-28.
129. Id. at 441;
130. see also id. at 440 (explaining "the limited sense in which the judicial function is a law-making function").
131. Id. at 442.
132. Id.
133. 87 HARV. L. REV. 693(1974).
134. 380 U.S. 460 (1965).
135. Id. at 475 (Harlan, J., concurring).
136. Id. at 474-75 (Harlan, J., concurring).
137. Ely, supra note 3, at 701.
138. Id.
139. Id. at 704.
140. Id. at 705.
141. Id. at 706.
142. Id. at 703 (emphasis added).
143. Ely, supra note 3, at 704.
144. Henry P. Monaghan, Book Review, 87 HARV. L. REV. 889, 892 (1974). Professor Monaghan elaborated on this point a year later in his Foreword to the Harvard Law Review: "[Erie] recognizes that federal judicial power to displace state law is not coextensive with the scope of dormant congressional power. Rather, the Court must point to some source, such as a statute, treaty, or constitutional provision, as authority for the creation of substantive federal law."
145. Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 11-12 (1975);
146. see also Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 314 n.199 (1984) (explaining that "there is no general federal judicial power to displace state law").
147. Mishkin, supra note 2, at 1682.
148. Id. at 1683.
149. Id.
150. Id.
151. Id. at 1685.
152. Id. at 1688.
153. Wechsler, supra note 11, at 543.
154. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 169 (1996);
155. see also Wechsler, supra note 11, at 543 ("Our constitution makers established a central government authorized to act directly upon individuals through its own agencies - and thus they formed a nation capable of function and of growth.").
156. See Clark, Separation of Powers, supra note 13, at 1347.
157. See id. at 1348-55;
158. see also Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91, 105-111 (2003) [hereinafter Clark, Supremacy Clause].
159. James Madison, The Records of the Federal Convention (May 31, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 45, 54 (Max Farrand ed., 1911) ("A Union of the States containing such an ingredient seemed to provide for its own destruction.") (James Madison) [hereinafter FARRAND'S RECORDS].
160. See Clark, Separation of Powers, supra note 13, at 1349-53. Delegates from the smaller states objected strongly to this mechanism. For example, Elbridge Gerry, of Massachusetts, remarked that "[t]he Natl. Legislature with such a power may enslave the States," and predicted that "[s]uch an idea as this will never be acceded to."
161. James Madison, The Records of the Federal Convention (June 8, 1787), in 1 FARRAND'S RECORDS, supra note 101, at 162, 165.
162. See Clark, Separation of Powers, supra note 13, at 1351-52.
163. James Madison, Notes on the Constitutional Convention (July 17, 1787), in 1 FARRAND'S RECORDS, supra note 101, at 22.
164. U.S. CONST. art. VI, cl. 2 (emphasis added).
165. Cf. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 498 (1954) ("The federal law which governs the exercise of state authority is obviously interstitial law, assuming the existence of, and depending for its impact upon, the underlying bodies of state law.").
166. U.S. CONST. art. VI, cl. 2.
167. THE FEDERALIST NO. 45, at 291 (James Madison) (Clinton Rossiter ed., 1961).
168. Wechsler, supra note 11, at 5 5 8.
169. See U.S. CONST. art. V. Ordinarily, two thirds of the House and Senate propose amendments for ratification by the states. U.S. CONST. art. V. Alternatively, "on the Application of the Legislatures of two thirds of the several States,"
170. id., Congress "shall call a Convention for proposing Amendments."
171. Id. This procedure has never been used but, in any event, the states (for whom the Senate was designed to serve as a proxy) would participate directly both in calling the Convention and in ratifying its proposals.
172. See U.S. CONST. art. I, § 7.
173. See U.S. CONST. art. II, § 2, cl. 2.
174. For example, the Seventeenth Amendment has reduced the states' influence in the Senate by replacing appointment of Senators by state legislatures with popular elections. See U.S. CONST. amend. XVII. Changes in constitutional law have also limited the states' ability to influence the House of Representatives through control over voter qualifications and districting.
175. See U.S. CONST. XV (race);
176. id. amend. XIX (sex);
177. id. amend. XXIV (poll tax);
178. id. amend. XXVI (age). Finally, the states' modern practice of appointing presidential electors on the basis of winner-take-all popular elections has reduced the role of state legislatures in selecting the President and all but eliminated the possibility that the President will be selected by the House of Representatives voting by states.
179. See McNollgast [Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast], Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 707 & n.5 (1992).
180. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 74-75 (2001);
181. William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 DUKE L.J. 948, 956;
182. Michael B. Rappaport, Amending the Constitution to Establish Fiscal Supermajority Rules, 13 J.L. & POL. 705, 712 (1997).
183. See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1792 (2005) ("A national government that can act only with difficulty, after all, will tend to leave considerable scope for state autonomy."). Some commentators and judges have even pointed to the existence of the political safeguards of federalism as a reason to curtail judicial review of the scope of federal powers. See United States v. Morrison, 529 U.S. 598, 647-51 (2000) (Souter, J., dissenting) (joined by Justices Stevens, Breyer, and Ginsburg);
184. id. at 660-61 (Breyer, J., dissenting) (joined by Justices Stevens, Souter, and Ginsburg);
185. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 551 (1985);
186. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 175 (1980);
187. Jesse H. Choper, The Scope of National Power Vis-à-Vis the States: The Dispensability of Judicial Review, 86 YALE L.J. 1552, 1557 (1977).
188. Whatever the merits of this suggestion, see Clark, Supremacy Clause, supra note 100, there is widespread agreement that the political safeguards built into the original constitutional structure were meant to preserve the governance prerogatives of the states.
189. See INS v. Chadha, 462 U.S. 919, 951 (1983) ("It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.");
190. see also Clark, Separation of Powers, supra note 13, at 1328-72 (arguing that the text, structure, and history of the Constitution suggest that the procedures specified in the Constitution are the exclusive means of adopting the "Constitution," "Laws," and "Treaties" of the United States).
191. The only potential exception is the possibility that the states themselves will trigger a convention for proposing constitutional amendments under Article V, thus relieving the House and Senate of this responsibility. See supra note 110.
192. James Madison, Notes on the Constitutional Convention (June 7, 1787), in 1 FARRAND'S RECORDS, supra note 101, at 155-56.
193. The Founders understood that these procedural safeguards of federalism would make it more difficult to adopt all forms of supreme federal law, but thought that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." THE FEDERALIST NO. 73, at 444 (Alexander Hamilton) (Clinton Rossitered., 1961).
194. Mishkin, supra note 2, at 1683;
195. see also Hill, supra note 52, at 441 (stating that "even if a particular area is one in which the federal government has power to make independent law, it does not follow that a federal court also has power to do so");
196. Monaghan, supra note 90, at 11-12 (stating that "federal judicial power to displace state law is not coextensive with the scope of dormant congressional power").
197. Mishkin, supra note 2, at 1683.
198. See, e.g., M. Elizabeth Magill, The Real Separation In Separation of Powers Law, 86 VA. L. REV. 1127 (2000);
199. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996);
200. Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513 (1991);
201. Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225;
202. Martin H. Reddish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism In Separation of Powers Theory, 41 DUKE L.J. 449 (1991);
203. Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253 (1988);
204. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488 (1987).
205. Buckley v. Valeo, 424 U.S. 1, 124 (1976).
206. U.S. CONST. art. I, § 7, cl. 2.
207. Id.
208. INS v. Chadha, 462 U.S. 919, 946 (1983).
209. Id. at 952.
210. Id. at 951.
211. 524 U.S. 417 (1998).
212. Id. at 436.
213. Id. at 438.
214. Id. at 448.
215. See Clark, Separation of Powers, supra note 13, at 1324.
216. See supra notes 105-109 and accompanying text.
217. See Clark, Separation of Powers, supra note 13 at 1414 ("Careful analysis reveals that Erie's constitutional holding is best understood as an attempt to enforce federal lawmaking procedures and the political safeguards of federalism they incorporate.").
218. Erie, 304 U.S. at 78. Of course, the Supremacy Clause refers not only to the "Constitution" and "Laws," but also to "Treaties."
219. See U.S. CONST. art. VI, cl. 2.
220. U.S. CONST. art. VI, cl. 2.
221. Chadha, 462 U.S. at 951.
222. To be sure, several potential counterexamples have arisen since Erie was decided. For example, federal administrative agencies now regularly promulgate rules that preempt state law. See Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004). Even in this context, however, the Supreme Court has conditioned preemption on congressional authorization.
223. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) (stating that "an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it");
224. Clark, Separation of Powers, supra note 13, at 1430-38. Another potential counterexample is the rise of sole executive agreements-i.e., international agreements made by the President alone without the participation or assent of either house of Congress. The Court has recently stated that such agreements are generally "fit to preempt state law, just as treaties are." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 416 (2003). For a critique of this position,
225. see Brannon P. Denning & Michael D. Ramsey, American Insurance Association v. Garamendi and Executive Preemption In Foreign Affairs, 46 WM. & MARY L. REV. 825 (2004);
226. see also Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. (forthcoming 2007). An examination of these doctrines is beyond the scope of this paper.
227. 304 U.S. at 78. One might think that modern "federal common law" contradicts this understanding of Erie. Federal common law usually refers to rules of decision that purport to have the force of federal law, but whose content cannot be traced by traditional methods of interpretation to the Constitution, laws, and treaties of the United States.
228. See Clark, Federal Common Law, supra note 8, at 1247. Even with respect to such rules, however, the pull of Erie and the Supremacy Clause is in evidence. The Supreme Court has rejected open-ended federal common lawmaking and attempted to confine judicial lawmaking to "such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes. .., and admiralty disputes." Tex. Indus, v. Radcliff Materials, 451 U.S. 630, 641 (1981). As I have argued elsewhere, many of the rules that make up these enclaves have arguably been mischaracterized because they are actually "consistent with, and frequently required by, the constitutional structure," and thus do not constitute authentic "federal common law."
229. Clark, Federal Common Law, supra note 8, at 1251.
230. Cf. Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 35 (1985) (suggesting that some federal common lawmaking - i.e., "delegated" and "preemptive" lawmaking-is legitimate because authorized by Congress). Even admiralty - the most entrenched enclave of federal common law - has recently been called into question as inconsistent with Erie.
231. See Am. Dredging Co. v. Miller, 510 U.S. 443, 459 (1994) (Stevens, J., concurring in part and concurring in the judgment) (suggesting that the Court's modern admiralty doctrine represents "an unwarranted assertion of judicial authority to strike down or confine state legislation. . . without any firm grounding in constitutional text or principle");
232. Clark, Federal Common Law, supra note 8, at 1360 (comparing federal common law in admiralty to general commercial law under Swift);
233. Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 279 (1999) (arguing that "we would do better to follow Erie by largely abandoning the effort to construct federal common law rules in admiralty cases that arise within state territorial waters").
234. Erie, 304 U.S. at 78.
235. Id.
236. Baugh, 149 U.S. at 401 (Field, J., dissenting).
237. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 431 (1995) (explaining that by the time Erie was decided, changing conceptions of state law revealed the "fundamentally political reality" that "what a judge was doing when he decided an open question of common law was making law rather than finding law").
238. Erie, 304 U.S. at 80.
239. Id. at 78.
240. Id. at 79. Of course, when state law is not clear, federal courts often risk usurping state authority by "predicting" how the state's highest court would rule.
241. See Clark, Ascertaining, supra note 13, at 1495-1517. When possible, federal courts can avoid this risk by certifying unsettled questions of state law to the state's highest court for authoritative resolution.
242. See id. at 1544-56;
243. see also Guido Calabresi, Federal and State Courts: Restoring A Workable Balance, 78 N.Y.U. L. REV. 1293 (2003) (advocating various types of certification).
244. Erie, 304 U.S. at 77-78.
245. Id. at 79 (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 534 (1928) (Holmes, J., dissenting)).
246. Hanna v. Plumer, 380 U.S. 460, 471 (1964).
247. Id. at 472.
248. Over time, the Court has instructed courts to choose between state law and federal practice by asking whether "the outcome of the litigation" would be "substantially different" in federal rather than state court, Guar. Trust Co. v. York, 326 U.S. 99, 109 (1945);
249. whether the state rule was "intended to be bound up with the definition of the rights and obligations of the parties," Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 536 (1958); and whether the application of state law furthers "the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Hanna, 380 U.S. at 468.
250. If a federal court answers in the affirmative, then it should apply state law absent "affirmative countervailing considerations." Byrd, 356 U.S. at 537;
251. see id. at 538 (finding that "the federal policy favoring jury decisions of disputed fact questions" constitutes an adequate countervailing consideration).
252. See Stewart Org., Inc. v. Ricoh, 487 U.S. 22, 27 (1988) (stating that when "a federal statute covers the point in dispute," a federal court need only "inquire whether the statute represents a valid exercise of Congress' authority under the Constitution");
253. Burlington N. R.R. v. Woods, 480 U.S. 1, 8 (1987) (stating that so long as a federal rule falls within the scope of the Rules Enabling Act, the only question is whether the rule "regulates matters which can reasonably be classified as procedural, thereby satisfying the constitutional standard for validity").
254. 28 U.S.C. § 2072 (1994).
255. The Supreme Court has long permitted Congress to assign rulemaking power to federal courts on the theory that such power is not "strictly and exclusively legislative." Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825). The Court has recognized that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution," United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812), and that these powers include authority to adopt rules of practice and procedure for federal courts, notwithstanding contrary state rules applicable in state court.
256. See Robinson v. Campbell, 16 U.S. (3 Wheat.) 212, 222-23 (1818).
257. The Supremacy Clause recognizes only "Laws . . . made in Pursuance" of the Constitution. U.S. CONST. art. VI, cl. 2. This language contemplates that courts will review the constitutionality of federal statutes before treating them as "the supreme Law of the Land."
258. See Clark, Supremacy Clause, supra note 100, at 99-105. Of course, Congress has broad constitutional power under Article III and the Necessary and Proper Clause "to make rules governing the practice and pleading in [federal] courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either."
259. Hanna, 380 U.S. at 472.
260. Erie, 304 U.S. at 78
261. (quoting Baugh, 141 U.S. at 401 (Field, J., dissenting)).
262. Mishkin, supra note 2, at 1686-87.