Repressing Erie's Myth

California Law Review

Volumn 96, Issue 3, 2008, Pages 595-660

  Green, Craig ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 47849120646     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (489)

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803);
2. Brown v. Bd. of Educ., 347 U.S. 483 (1954);
3. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
4. To support Erie's ranking as the last and least of this threesome, see, for example, John Hart Ely, The Irrepressible Myth of Erie., 87 HARV. L. REV. 693, 695 (1974) ("Erie is by no means simply a case. Nor would it do it justice to call it a rule or even a principle, for it implicates, indeed perhaps it is, the very essence of our federalism.");
5. HARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 378 (6th ed. 2002) ("It is impossible to overstate the importance of the Erie decision.");
6. BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 272 n.4 (1977) ("Erie will remain a star of the first magnitude in the legal universe.");
7. Justice Hugo Black, Address at the Sixty-Second Annual Meeting of the Missouri Bar Association (Sept. 24-26, 1942), in 13 Mo. B. J. 173, 174 (1942) (describing Erie as "one of the most important cases at law in American legal history");
8. Irving Younger, What Happened in Erie, 56 TEXAS L. REV. 1011, 1011 (1978) ("[Erie] is the keystone of the procedure course taught at every American law school.");
9. Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity?, 78 MICH. L. REV. 311, 312 (1980) ("[Erie] has been the central concern of an entire generation of academic lawyers.");
10. Donald L. Doernberg, Juridical Chameleons in the "New Erie" Canal, 1990 UTAH L. REV. 759, 761 ("To call [Erie] a landmark case certainly is to belittle its effect.");
11. Daniel C.K. Chow, Limiting Erie in a New Age of International Law: Toward a Federal Common Law of International Choice of Law, 74 IOWA L. REV. 165, 166-67 (1988) ("So powerful is Erie's grip on the American legal imagination that [it has been applied] even to issues of international choice of law .... "). This Article suggests that such iconographies are overstated.
12. Erie, 304 U.S. at 80.
13. Many commentators believe that Erie has some constitutional foundation, though it is variously characterized and persistently vague. See, e.g., 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4505 (3d ed. 2007) (endorsing Erie's "remarkably abbreviated" and "puzzling" constitutional holding); cf. Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J. 223, 237 n.69 (2003) (noting "the murky bases of the decision in Erie" which "lacks specificity on what exactly was unconstitutional");
14. Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733, 756 (1986) ("Long after Erie, there was widely shared uncertainty as to ... its constitutional holding.").
15. Even though other scholars have challenged Erie's constitutional basis, e.g., 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 865-66, 912-15 (1953);
16. Arthur John Keeffe et al., Weary Erie, 34 CORNELL L.Q. 494 (1949);
17. John B. Corr, Thoughts on the Vitality of Erie, 41 AM. U. L. REV. 1087 (1992), this Article offers a distinctively comprehensive critique. Also, the critics cited supra conclude, unlike this Article, that Erie is ineffective as a matter of policy and should be overturned.
18. Canonical Erie cases include Hanna v. Plumer, 380 U.S. 460 (1965),
19. Guar. Trust Co. v. York, 326 U.S. 99 (1945),
20. and Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (1958).
21. See also Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001);
22. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996). All of these were diversity cases involving state-law causes of action. In noting that diversity jurisdiction and supplemental jurisdiction are conventional sources of "Erie problems," I do not address arguments that the two should be analyzed differently. See, e.g., Westen & Lehman, supra note 2, at 385-88.
23. Bradley and Goldsmith have written at least ten articles addressing Erie and customary international law. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) [hereinafter Bradley & Goldsmith, Customary International Law];
24. Curtis A. Bradley et al., Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869 (2007).
25. See, e.g., Idema v. Wager, 120 F. Supp. 2d 361, 364 (S.D.N.Y. 2000) ("[A]s Justice Cardozo [sic] declared long ago in the immortal case of Erie v. Tompkins,... 'There is no federal common law. [sic]'");
26. see also Donald L. Doernberg, The Unseen Track of Erie Railroad: Why History and Jurisprudence Suggest a More Straightforward Form of Erie Analysis, 109 W. VA. L. REV. 611, 612 (2007) ("Students tend to recall that Justice Brandeis said that there is no federal common law, but he did not.");
27. George D. Brown, Of Activism and Erie - The Implication Doctrine's Implications for the Nature and Role of the Federal Courts, 69 IOWA L. REV. 617, 622 (1984) (noting that "Erie simply did not deal with the question of when federal courts can fashion common law") (emphasis omitted).
28. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law.") (emphasis added);
29. see also RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 685 (5th ed. 2003) ("There is no longer serious dispute that the body of federal law legitimately includes judge-made law.");
30. see also Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938) (deciding, on the same day as Erie, that an interstate dispute over apportioning water in a stream involved '"federal common law' upon which neither the statutes nor the decisions of either State can be conclusive"). But cf. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1271-75 (1996) [hereinafter Clark, Federal Common Law] (claiming that most traditional "enclaves" of federal common law are not "judge-made" law at all).
31. See, e.g., Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 412-18 (1964) [hereinafter Friendly, Praise] (describing labor contracts, unfair competition affecting interstate commerce, activities of interstate carriers, and defamation by multi-state media as spheres of expanding federal common law).
32. But cf. Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 274, 279 (1999) (proposing to abandon "federal common law rules in admiralty cases that arise within state territorial waters").
33. 41 U.S. (16 Pet.) 1 (1842); see also Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 46-47 (1985).
34. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 138 (1893);
35. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962);
36. OWEN FISS, THE LAW AS IT COULD BE (2003).
37. 28 U.S.C. § 1350 (2000) ("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.").
38. 542 U.S. 692 (2004).
39. See, e.g., Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SUP. CT. REV. 153, 163-65 (discussing Erie-based confusion over the Alien Tort Statute).
40. As one new-myth advocate eagerly inquired, "Where Might The New Erie Doctrine Strike Next?" Brown, supra note 8, at 637.
41. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
42. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
43. See id. at 635-38.
44. For outpourings about Marbury and Brown, see Marbury v. Madison: A Bicentennial Symposium, 89 VA. L. REV. 1105 (2003),
45. Symposium, Judging Judicial Review: Marbury in the Modern Era, 101 MICH. L. REV. 2557 (2003),
46. Symposium, Brown at Fifty, 117 HARV. L. REV. 1302 (2004),
47. and Symposium, Revisiting Brown v. Board of Education: 50 Years of Legal and Social Debate, 90 CORNELL L. REV. 279 (2005).
48. Milder celebrations of Erie include Jack B. Weinstein, The Ghost of Process Past: The Fiftieth Anniversary of the Federal Rules of Civil Procedure and Erie, 54 BROOK. L. REV. 1 (1988),
49. and Mary Kay Kane, The Golden Wedding Year: Erie Railroad Company v. Tompkins and the Federal Rules, 63 NOTRE DAME L. REV. 671 (1988).
50. Bait. & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting). Although this quotation originally condemned Swift-era common law, I would apply it to Erie's old myth.
51. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 14, 16-18, 22 (1842);
52. see GRANT GILMORE, THE AGES OF AMERICAN LAW 61 (1977) (describing Swift's demonization as a "headless monster, marked down for destruction by all right-thinking men"). Strong historical accounts of Erie include 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),
53. TONY FREYER, HARMONY & DISSONANCE: THE SWIFT & ERIE CASES IN AMERICAN FEDERALISM (1981), and
54. Younger, supra note 2.
55. In 1938, the Rules of Decision Act read: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Federal Judiciary Act of 1789, ch. 20, § 34, 1 Stat. 73, 92 (1789). The current codification applies to all "civil actions," not just to "trials at common law." 28 U.S.C. § 1652 (2000). For conflicting views of the Act's original intent, compare Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 84-88 (1923),
56. with WILFRED J. RITZ, REWRITING THE HISTORY OF THE JUDICIARY ACT OF 1789: EXPOSING MYTHS, CHALLENGING PREMISES, AND USING NEW EVIDENCE 79, 148 (Wythe Holt & L.H. LaRue eds., 1990).
57. For arguments over the Act's relevance to Erie, compare Ely, supra note 2, at 698-99, 718-38, with Kevin M. Clermont, Reverse-Erie, 82 NOTRE DAME L. REV. 1, 14 n.58 (2006).
58. Swift, 41 U.S. at 18-19. The relationship was never clear between Swift's statements about statutory versus common law on the one hand, and general versus local law on the other.
59. See id. at 18; Percy Werner, National Common Law, 8 S. L. REV. NEW SERIES 414, 420 (1882);
60. Felix Frankfurter, Distribution of Judicial Power between United States and State Courts, 13 CORNELL L.Q. 499, 524 (1928) (noting that Swift's federal general common law purportedly "derived from diverse-citizenship jurisdiction").
61. See FREYER, supra note 22, at 35-37, 55-56, 73-77, 84-86, 92-96, 99-100 (explaining how Swift became a "center of controversy");
62. PURCELL, supra note 22, at 65-69;
63. EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, 62, 226-27 (1992).
64. 304 U.S. 64, 69-71, 78 (1938).
65. "Criticism of the doctrine became widespread" as increasingly flagrant forum shoppers escaped unfavorable state common law by invoking federal diversity jurisdiction. Id. at 71-76.
66. Id. at 77-78 (citations omitted) (emphasis added). Brandeis was the first of Swift's critics to argue that the case could be judicially overruled only on constitutional grounds.
67. See Frankfurter, supra note 25, at 524;
68. FREYER, supra note 22, at 85-95. Brandeis had also encouraged a legislative solution.
69. See Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1109 (1982).
70. See Swift, 41 U.S. at 18.
71. Some commentators have blurred the line between Erie's statutory and constitutional arguments, claiming in effect, that Swift's federal general common law was not authorized by statute and was therefore unconstitutional. Such arguments are unsupported by the Court's opinion, which analyzed the statutory and constitutional arguments in different sections using different arguments. Erie, 304 U.S. at 72-73, 77-80;
72. see infra note 32 (noting a sharp division between Reed and Brandeis on this point). Any effort to fuse Erie's statutory and constitutional arguments would also depart from conventional discussions of judicial power by "converting] every judicial mistake of legislative interpretation into a constitutional violation."
73. Westen & Lehman, supra note 2, at 340-41, 340 n.95 (collecting sources).
74. Erie, 304 U.S. at 91 (Reed, J., concurring in part); cf. Gasperini v. Ctr. for Humanities, 518 U.S. 415, 427 (1996) (describing Erie's holding as a construction of the Rules of Decision Act). For modern debates about the Rules of Decision Act,
75. see Burbank, supra note 4, at 789-90 (describing the Act as a limit on federal common law);
76. Louise Weinberg, The Curious Notion that the Rules of Decision Act Blocks Supreme Federal Common Law, 83 Nw. U. L. REV. 860, 875 (1989) (suggesting the opposite);
77. Stephen B. Burbank, Federal Judgments Law: Sources of Authority and Sources of Rules, 70 TEX. L. REV. 1551, 1559 n.51 (1992);
78. RITZ, supra note 23, at 134. One problem with resting Erie solely on statutory grounds might have been that the Rules of Decision Act at that time applied only to common law cases, and Erie's defenders certainly wished its principles to apply in equity cases as well. Cf. Guar. Trust Co. v. York, 326 U.S. 99, 103-04 (1945).
79. Some scholars might assert that grand labels should attach even to a statutory version of Erie. For example, although Kevin Clermont believes that Erie's constitutional arguments are unsteady, he calls Erie a "megadoctrine" concerning subconstitutional federalism and comity. Clermont, supra note 23, at 50. One might question whether such principles are best named "Erie." See Philip B. Kurland, The Federal Courts and the Federal System, 67 HARV. L. REV. 906, 907 (1954) (Book Review) (proposing to rename "Erie" jurisprudence to emphasize Guaranty Trust Co. v. York, 326 U.S. 99 (1945));
80. Doernberg, supra note 8, at 662-63 (suggesting that much "Erie" doctrine owes to Clearfield Trust Co. v. United States, 318 U.S. 363 (1943),
81. and Byrd v. Blue Ridge Elec. Coop., 356 U.S. 525 (1958));
82. Charles E. Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 YALE L.J. 267, 269 (1946) (criticizing lawyers' reflex of citing a "single great case," Erie, whenever federal-state issues arise).
83. To avoid this result, Erie expressly disclaimed holding any federal statute unconstitutional. See Erie, 304 U.S. at 79-80.
84. See id. at 78-80 ("Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or 'general' .... And no clause in the Constitution purports to confer such a power upon the federal courts .... [In applying Swift,] this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several states.").
85. Id. at 74-75 (footnote omitted) ("Swift . . . made rights enjoyed under the unwritten 'general law' vary according to whether enforcement was sought in the state or in the federal court .... Thus, the doctrine rendered impossible equal protection of the law."). Id. at 74-75 (footnote omitted).
86. 347 U.S. 497, 498-500 (1954). See Louis H. Pollak, Thinking about Liberty, 79 TEMP. L. REV. 737, 746-49 (2006) (describing how substantially the legal climate changed in the decade before Boiling). Compare Korematsu v. United States, 323 U.S. 214, 216 (1944) (stating that federal racial discrimination ordinarily should receive "the most rigid scrutiny"), and Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (noting that the Fifth Amendment "contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process"),
87. with RICHARD KLUGER, SIMPLE JUSTICE 226, 255 (2004) (noting explicit racial segregation in the United States military until 1948),
88. and PETER IRONS, JUSTICE AT WAR 364 (1983) ("[In 1942, Secretary of War Henry J. Stimson] defended the Army's segregation of black soldiers .... [He] denounced [contemporaries] who failed to understand 'the basic impossibility of social equality' in a society that forced the races apart by law.").
89. Cf. Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1478 (1997) [hereinafter Clark, Ascertaining].
90. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 188(2)(e), 145(2)(c) (1971);
91. Clark v. Jeter, 486 U.S. 456, 461 (1988).
92. Paul Carrington has argued in passing that "there likely is an equal protection consideration" in Erie, and that "arbitrarily discriminatory results occur because of the citizenship of the disputants." Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 998-99 (1996). Such "discrimination, " however, is the indirect result of federal courts' general inability under Article III to decide state-law cases absent diversity of citizenship.
93. None of this analysis defends Swift's unfairness as good policy. See Westen & Lehman, supra note 2, at 378. Nevertheless, the disparities caused by Swift were not so extreme as to violate constitutional equal protection or due process.
94. See U.S. CONST, art. III, § 2; 28 U.S.C. § 1332 (2005).
95. See, e.g., Ely, supra note 2, at 713.
96. See H.L.A. HART, THE CONCEPT OF LAW (1961);
97. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 112 (Wilfrid E. Rumble ed., Cambridge Univ. Press 1995) (1832).
98. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting));
99. see also S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) ("The common law is not a brooding omnipresence in the sky ....").
100. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.").
101. E.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 741 (2004) (Scalia, J., concurring in part and concurring in the judgment) (calling Holmes's rhetoric "hyperbolic").
102. For a superb essay on this point, see Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 VA. L. REV. 673, 676 (1998) ("Legal positivism is conceptually and normatively irrelevant to Erie's holding.");
103. see also id. at 682-83 ("It is doubtful that Swift represented a commitment to or belief in the 'brooding omnipresence' theory .... [The Court] and commentators justified [Swift] primarily on constitutional grounds .... Whatever one thinks of the merits of this constitutional argument, it does not rest on a denial of the truth of legal positivism.") (footnotes omitted); id. at 685 ("Even the Swift supporters . . . thought that [federal general common law] was judge-made, national common law authorized by the Constitution and analogous to . . . state common law. They too were legal positivists.") (footnote omitted); id. at 694 ("Legal positivism was embraced by both critics and supporters of Swift. . . few if any ever defended Swift on anti-positivist terms.");
104. see also Ely, supra note 2, at 703 n.59 ( "[It is not] necessary to believe in a 'transcendental body of law' ... to approve Swift; one might just prefer to have federal judges making law.") (citation omitted);
105. FREYER, supra note 22, at 122 (observing that critiques and defenses of Swift were equally consistent with positivism);
106. id. at 116 n.28, 117 n.29, 119 nn.32-34 (citing as examples: JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW 248-49, 253 (1909);
107. Felix Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 CORNELL L. Q. 499 (1928);
108. Arthur L. Corbin, The Restatement of the Common Law by the American Law Institute, 15 IOWA L. REV. 19, 25-27, 35 (1929)).
109. 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 (1984).
110. See, e.g., HART, supra note 42, at 132 (comparing stare decisis to rule-production by administrative agents);
111. see also H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 608-09 (1958) ("[O]nly an entire misconception of what analytical jurisprudence . . . has led to the view that [John Austin] believed that . . . judges deduced their decisions from premises. On the contrary, he . . . berated the common-law judges for legislating feebly and timidly . . . instead of adapting their decisions to the growing needs of society as revealed by the moral standard of utility.").
112. See infra Section II.B.2.
113. See HART, supra note 42, at vii.
114. See supra notes 25, 46 (collecting sources).
115. See Guar. Trust Co. v. York, 326 U.S. 99, 109 (1945).
116. Some readers may feel that, even if positivism itself does not support Erie's result, positivism at least clarifies Swift's other constitutional flaws. This of course depends on whether my arguments concerning federalism and separation of powers fail. See infra Subsection I.B.3; Section II. One indirect effect of changes in American legal theory was perhaps to make Swift's subconstitutional problems (unfairness, forum shopping, and pro-corporate favoritism) more difficult to justify as twentieth-century theorists cast doubt on Swift's "brooding omnipresence in the sky." S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). Yet it was no transformative legal theory that determined whether Swift's common law was properly implied from the Rules of Decision Act and the grant of diversity jurisdiction. Thus, for commentators who believe (as I do) that Erie is justified on prudential grounds, positivism must stay firmly on the sidelines. And for jurists who dispute my analysis of federalism or separation of powers, I cannot see how positivism's emergence enlightens any core point of disagreement.
117. For a particularly dedicated effort to link Erie's federalism and positivism arguments, see Clark, Ascertaining, supra note 37, at 1479-80. Yet even Clark concludes that Erie's "embrace of legal positivism ... is not sufficient to explain" Erie's result. Id. at 1481 (emphasis added). I would add that positivism also seems unnecessary.
118. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).
119. See Ely, supra note 2, at 702;
120. Friendly, Praise, supra note 10, at 397.
121. See Erie, 304 U.S. at 71-80.
122. Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 VA. L. REV. 1141, 1159 n.67 (1988) ("A major difficulty is that the Constitution's supporters and opponents alike attributed 'complex and often contradictory meanings' to the concept of state sovereignty.");
123. H. Jefferson Powell, The Modern Misunderstanding of Original Intent, 54 U. CHI. L. REV. 1513, 1524 (1987).
124. See, e.g., Saul Cornell, Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey Rebellion, 81 CHI.- KENT L. REV. 883, 885 (2006);
125. cf. Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 43-44 (1922);
126. Plessy v. Ferguson, 163 U.S. 537 (1896).
127. Robert Post, Federalism in the Taft Court Era: Can It Be "Revived"?, 51 DUKE L.J. 1513, 1635 (2002);
128. accord Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139 (2001). The Court has used "dual sovereignty" with an apparently different meaning.
129. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 751 (2002). My use of the term follows Post's and Young's.
130. Post, supra note 58, at 1518.
131. See, e.g., Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1406 (2006).
132. But see Ernest A. Young, Sorting out the Debate over Customary International Law, 42 VA. J. INT'L L. 365, 411 n.233 (2002) [hereinafter Young, Sorting] (noting that Erie's federalism argument "rested crucially on . . . assumptions of 'dual federalism' . . . that have mostly disappeared from our jurisprudence.").
133. See generally Daniel A. Farber, Who Killed Lochner?, 90 GEO. L.J. 985 (2002) (reviewing G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL (2000)).
134. See PURCELL, supra note 22, at 113-120.
135. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80 (1938) (holding that Swift "invaded rights which ... are reserved by the Constitution to the several states"); cf. U.S. CONST, amend. X. Erie's text thus unsettles Purcell's claim that the Tenth Amendment argument in Erie is "derivative[]," "oblique[] and reluctant[]," or "superfluous". See PURCELL, supra note 22, at 178-79. Purcell notes that Erie did not explicitly cite the Tenth Amendment, nor elaborate its reference to "rights which ... are reserved by the Constitution to the several states." Id. at 180 (quoting Erie, 304 U.S. at 80). By contrast, I find the opinion's language quite clear; and perhaps more so in 1938, when states' rights arguments were prevalent. For comparably indirect Tenth Amendment references,
136. see Wiggins Ferry Co. v. City of E. St. Louis, 107 U.S. 365, 375 (1883),
137. and Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421, 434 (Roy P. Basler ed., 1953).
138. My disagreements with Purcell may owe to our different methodologies. See PURCELL, supra note 22, at 1 (introducing his "work of history, not of law"). On occasion, Purcell seems to read Erie, not simply through its published words, but as an expression of Brandeis's judicial biography. See id. at 114 ("Erie was ... a decision of the Supreme Court that embodied the well-considered and fundamental constitutional theory of only a single justice."). In my judgment, such a historicized approach can be taken too far, underappreciating that Supreme Court opinions are produced by an institution, not a single Justice.
139. Cf. Young, supra note 60, at 410-11 n.233 (drawing similar methodological distinctions).
140. Purcell's own research shows that some of Erie's strongest federalism rhetoric was added to satisfy other members of the Court.
141. See PURCELL, supra note 22, at 179 ("Hughes, like Justice Roberts, had suggested that the Tenth Amendment created substantive restrictions on national power, and both may have considered the provision as Erie's constitutional basis.");
142. id. at 109-113; id. at 114 (noting that three members of the Erie majority may have doubted the Court's constitutional arguments); id. (noting that Purcell's non-states-rights theory of Erie "may well have had no [full] supporters" except Brandeis himself); id. at 180. As Purcell would agree, however, even the most penetrating insights into Brandeis's jurisprudence cannot displace the Court's collectively approved language - the latter is my focus.
143. Erie, 304 U.S. at 78 (quoting Bait. & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting)).
144. Baugh, 149 U.S. at 402.
145. Id. at 401-402 (Field, J., dissenting) (quoting Collector v. Day, 78 U.S. (11 Wall.) 113, 124 (1870)) (emphasis added). Day was limited to its facts one month after Erie was decided,
146. see Helvering v. Gerhardt, 304 U.S. 405 (1938), and was explicitly overruled in 1939,
147. ,see Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939). The fierceness of Field's dissent may owe to Baugh's facts, which applied the fellow-servant defense to railroad torts, rather than to a principled commitment to federalism,
148. see FREYER, supra note 22, at 65-70 (noting that Baugh rejected Field's opinion in Chicago, Milwaukee & St. Paul R.R. Co. v. Ross, 112 U.S. 377 (1884), which had reached opposite conclusions as a matter of federal general common law).
149. See Post, supra note 58, at 1638. Modern federalism debates, which are typically more modest, are described in Erwin Chemerinsky, The Assumptions of Federalism, 58 STAN. L. REV. 1763, 1763 (2006),
150. and Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 621-26 (2001).
151. Friendly, Praise, supra note 10, at 395.
152. See, e.g., Cheryl I. Harris, In the Shadow of Plessy, 7 U. PA. J. CONST. L. 867 (2005);
153. William H. Pryor Jr., Madison's Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 ALA. L. REV. 1167, 1171-72 (2002).
154. See generally Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421, 434 (Roy P. Basler ed., 1953) ("Much is said about the 'sovereignty' of the States; but the word, even, is not in the national Constitution ....").
155. See, e.g., FREYER, supra note 22, at 40;
156. cf. Printz v. United States, 521 U.S. 898 (1997) (prohibiting the commandeering of state officials to execute federal laws). For extended analysis of preemption's relevance to modern federalism,
157. see Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629 (2006).
158. Cf. FREYER, supra note 22, at 38.
159. U.S. CONST, amend. X.
160. U.S. CONST, art. III, § 2.
161. Cf. 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, 80, 98 (1993).
162. Although this is the orthodox rationale for diversity jurisdiction, e.g., Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 (1928) [hereinafter Friendly, Historic Basis], I express no view on its merit.
163. For further discussion of whether "the constitutional structure" supports Erie's result, see Craig Green, Erie and Problems of Constitutional "Structure ": A Response to Professor Clark, 96 CALIF. L. REV. 661 (2008).
164. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (internal quotations omitted).
165. Nat'l League of Cities v. Usery, 426 U.S. 833, 849 (1976). Not all fields of traditional state authority qualify as constitutionally protected states' rights, however. E.g., Gonzales v. Raich, 545 U.S. 1, 29 n.38 (2005).
166. See FREYER, supra note 22, at 2.
167. Clark claims that, under the Supremacy Clause, unless federal "law" is created through the mechanisms set forth in Article I and Article II or derives from some other constitutional requirement, it lies outside the federal government's constitutional power. See Bradford R. Clark, Erie's Constitutional Source, 95 CALIF. L. REV. 1289 (2007). My full response appears elsewhere in this volume.
168. See Green, supra note 75. On the merits, I question whether the Supremacy Clause serves the limiting function that Clark describes, which might put all federal common law under a constitutional shadow, along with many executive agreements and much administrative law. Furthermore, the Supremacy Clause would seem an odd basis for overruling Swift v. Tyson, since federal general common law was not thought to preempt state law.
169. Ely, supra note 2, at 702-03 (citation omitted) (emphasis added).
170. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis added).
171. William Crosskey criticized Erie as overlooking Article III, Congress's power to "constitute tribunals," and the "necessary and proper" clause.
172. See CROSSKEY, supra note 5, at 633-39, 866-71.
173. Though Crosskey's work has been fiercely disputed, e.g., Ernest J. Brown, Book Review, 67 HARV. L. REV. 1439, 1456 (1954), choice of law rules like Swift and Erie could plausibly be "necessary and proper" ancillaries to exercising diversity jurisdiction under Article III: Congress can make laws "necessary and proper for carrying into Execution" the powers of any branch of government.
174. See AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 442, 443-48 (1969);
175. Alfred Hill, The Erie Doctrine and the Constitution, 53 Nw. U. L. REV. 427, 565 (1958). By this logic, Congress could authorize federal courts to decide diversity cases using only federal precedents, as occurred in Swift.
176. The remaining question would be whether federal courts could make substantive laws in such cases. For arguments that federal courts' power should reach most, if not all, cases with interstate litigants, see infra notes 87-89 and accompanying text.
177. But cf. Stephen B. Burbank, supra note 4, at 756-57 n.102 (doubting, for reasons partly explained, whether "Congress [in 1938] had, or that it now has, the power to prescribe [a substantive liability rule] applicable only in federal courts, with the states having concurrent jurisdiction and remaining free to apply their own rules.").
178. See, e.g., Westen & Lehman, supra note 2, at 338 ("The federal courts had interpreted Swift to mean ... that they could adopt a federal common law in diversity cases that differed from the state common law ... and that they could fashion such a federal law in all areas of regulation . . . That interpretation of Swift's holding was unconstitutional, because it accorded the federal courts more extensive authority to make law than Congress itself possessed." (emphasis omitted)).
179. See generally Gen. Elec. Capital Corp. v. Grossman, 991 F.2d 1376, 1381-82 (1993) ("[T]he party's status at the time of suit controls for the purpose of determining whether diversity jurisdiction exists.").
180. This gap is presumably what Erie meant in stating that Congress was "confessedly" without power. Erie, 304 U.S. at 72. But cf. PURCELL, supra note 22, at 180 (offering a different view). By contrast, if Crosskey's argument were true, supra note 82, the federal government could regulate such disputes through diversity cases, even though such regulation would otherwise exceed Congress's Article I powers. For many jurists, that would be unacceptable.
181. See Bernhardt v. Polygraphie Co. of Am., 350 U.S. 198, 202 (1956);
182. Linda R. Hirshman, The Second Arbitration Trilogy: The Federalization of Arbitration Law, 71 VA. L. REV. 1305, 1320 n.78 (1985).
183. See, e.g., Westen & Lehman, supra note 2, at 338 ("[C]ourts acting in a common law capacity possess only as much power as the legislature possesses.").
184. See, e.g., Ely, supra note 2, at 703 n.62.
185. Cf. id.
186. Cf FREYER, supra note 22, at 102 (claiming without elaboration that "[p]erhaps as much as 80 percent of [twentieth century cases applying Swift] involved corporations engaged in interstate enterprise").
187. See generally Erie, 34 U.S. at 82 (Butler, J., dissenting).
188. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321 (2000);
189. Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994).
190. United States v. Salerno, 481 U.S. 739, 745 (1987).
191. See Young, supra note 60, at 411 n.233 ("[T]he notion that the entire regime of Swift would be unconstitutional simply because some judicial applications of the common law might fall outside the zone of federal legislative power seems inconsistent with the modern facial challenge doctrine. The Railroad would not have been able to make an 'as applied' challenge to Swift in Erie because the particular rule at issue there was surely within Congress's legislative power.") (emphasis and citation omitted).
192. Compare NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),
193. with Gonzales v. Raich, 545 U.S. 1 (2005).
194. See also Borchers, supra note 73, at 118-19.
195. See, e.g., Raich, 545 U.S. at 22-23.
196. Erie, 304 U.S. at 78.
197. Id.
198. Ely, supra note 2, at 703.
199. See sources cited supra note 6;
200. see also Clermont, supra note 23 (arguing that Erie should also guide whether state courts follow federal procedural requirements).
201. For rare criticism reaching similar conclusions, see Lawrence Earl Broh-Kahn, Amendment by Decision - More on the Erie Case, 30 KY. L.J. 3 (1941).
202. See also Kurland, supra note 33, at 910.
203. See, e.g., Louis H. Pollak, In Praise of Friendly, 133 U. PA. L. REV. 39, 61, 43 (1984) ("[Erie] cure[d] the besetting problem ... [that differences between] state and federal courts ... as to the law applicable to the same case results in irritation which has somewhat impaired the usefulness of the federal courts in some localities.") (quoting Friendly, Historic Basis, supra note 74, at 438 n.2 (quoting CHARLES W. ELIOT ET AL., PRELIMINARY REPORT ON EFFICIENCY IN THE ADMINISTRATION OF JUSTICE (1914)));
204. PURCELL, supra note 22, at 141-155, 165-172.
205. Erie, 304 U.S. at 74.
206. See Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court Is Doing a Halfway Decent Job in Its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 966 (1998).
207. But cf. 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, 123-24 (1993).
208. Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).
209. On the "oft-encountered heresy" that Erie applies only to diversity cases, see Friendly, Praise, supra note 10, at 408-09 n. 122.
210. Erie, 304 U.S. at 78.
211. Some scholars have suggested that Erie's language concerning congressional power is "dictum," e.g., Borchers, supra note 73, at 118, just as earlier scholars claimed that the totality of Erie's constitutional argument was "dictum," e.g., Clark, supra note 33, at 278. As written, however, the Court's conclusion about judicial power seems squarely to rest on its conclusion about congressional power. Thus, both seem to represent the Court's "stated and, on its view, necessary basis for deciding" the case. Friendly, Praise, supra note 10, at 385.
212. Hanna v. Plumer, 380 U.S. 460, 474 (1965) (Harlan, J., concurring).
213. For the first full statement of Erie's new myth, see Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682, 1683 (1974).
214. See also Hill, supra note 82, at 444-47. As a matter of intellectual history, the old myth has been in nearly continuous decline: from Brandeis's opinion, to Friendly's vigorous defense, to Ely's milder enumerated-powers argument. And Mishkin's separation-of-powers theory appeared as a response to Ely. Erie's new myth thus sparked to life just as old-myth federalism turned to ash.
215. Other leading defenders of the new myth include Thomas W. Merrill, supra note 11, at 46-47,
216. Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. REV. 761 (1989),
217. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001),
218. Young, Sorting, supra note 60,
219. Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA. J. INT'L L. 513 (2002),
220. and Bradley & Goldsmith, Customary International Law, supra note 7.
221. Partial exceptions are Brown, supra note 8,
222. and Doernberg, supra note 2, but they would not call "old Erie" or "new Erie" myths. By contrast, new-myth academics often criticize old-myth federalism in order to show that Erie is a separation-of-powers case. See, e.g., supra note 108.
223. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
224. Brandeis changed his opinion to state "[t]here is no federal general common law," when an earlier draft had imprecisely said "[t]here is no federal common law." PURCELL, supra note 22, at 106.
225. See generally Borchers, supra note 102, at 111-15,
226. and Fletcher, supra note 46, at 1527-28.
227. Federal general common law was "federal" because it issued from a federal judge, even though such rulings did not preempt contrary state law in state court. See FREYER, supra note 22, at 40. The term "general" indicated that these substantive rules came from broad principles of law and justice independent of any particular jurisdiction. Cf. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842) ("[QJuestions of general commercial law . . . [depend] upon general reasoning and legal analogies . . . ."); id. ("[T]he true interpretation and effect [of contracts and commercial instruments] are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence.").
228. Friendly, Praise, supra note 10 (emphasis added); id. at 405.
229. The term "general" feeds this confusion. Modern readers might construe the word to mean "broad" or "widespread." But in contract, it concerned the belief (criticized by Holmes and discussed supra) that Swift-era common law derived, not from the federal or state government, but from "general" transcendent principles. This may be why Erie used the term "federal general common law" (i.e., federal application of "general" common law), rather than "general federal common law" (i.e., broad application of federal common law). Erie's use of "general" identified the source of Swift-era common law, not its breadth.
230. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
231. See sources cited supra note 9. Of course, to accept federal common law's existence does not answer what legal authority is needed to justify federal common law. See infra Part III.
232. For examples, see sources cited supra note 6.
233. Debates over judicial authority and the separation of powers might continue with citations to Cort v. Ash, 422 U.S. 66 (1975), or Alexander v. Sandoval, 532 U.S. 275 (2001). But these modern cases are products of their age, and are seen to stand for only "one side" of modern controversies over judicial role. By contrast, Erie lets judicial critics move beyond controversies over the Warren and Burger Courts' legacies, to claim fundamental, almost transcendent doctrinal roots. This Article does not take sides in post-Erie, post-Warren, post-Rehnquist debates over judicial power; I simply insist on recognizing such issues for what they are.
234. See sources cited supra note 108.
235. See, e.g., id.; David P. Currie, The Constitution in the Supreme Court: The New Deal, 1931-1940, 54 U. CHI. L. REV. 504, 551-52 (1987).
236. Note the difference between the old myth, which limits all federal power, and the new myth, which demands only more congressional specificity.
237. See infra Part U.C. Commentators differ over the new myth's scope. Compare sources cited supra note 7 (rejecting federal common-law enforcement of customary international law), with Clark, Federal Common Law, supra note 9, at 1292-1322 (accepting federal common law in foreign affairs), and Young, supra note 60 (proposing that customary international law should be enforceable in federal court, but not binding upon state courts). My theoretical objections apply to all accounts of the new myth, but my practical concerns stem from the new myth's broadest applications, which some new-myth advocates themselves resist.
238. See, e.g., Westen & Lehman, supra note 2, at 331-32 ("When a court in this country acts in a common law capacity, it performs precisely the same function as when it interprets a statute: It legislates 'interstitially' by 'filling in the gaps left by the legislature,' fully recognizing that the legislature 'can by the ordinarily legislative process correct results if it does not approve.' . . . The more definite and explicit the prevailing legislative policy, the more likely a court will speak of common law.") (footnotes omitted)
239. (quoting John Hart Ely, The Supreme Court, 1977 Term - Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 50 (1978));
240. id. at 333 ("The courts in each case fashion law by assessing public policy as reflected in the enactments and silences of Congress, remembering, always, that 'Congress can have the last word if it chooses.'") (footnotes omitted) (quoting Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: the Lincoln Mills Case, 71 HARV. L. REV. 1, 17 (1957));
241. Burbank, supra note 4, at 790.
242. See Westen & Lehman, supra note 2, at 333-34 (comparing "common-law" admiralty cases to "statutory" antitrust);
243. cf. Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation, 51 STAN. L. REV. 1, 19-20 (1998);
244. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216-17 (2001).
245. See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007) (antitrust);
246. Hartman v. Moore, 547 U.S. 250, 258 (2006) (constitutional torts);
247. David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 574 (1985) (jurisdiction);
248. Roger H. Transgrud, The Federal Common Law of Personal Jurisdiction, 57 GEO. WASH. L. REV. 849, 871 -72, (1989) (personal jurisdiction);
249. see Philip C. Kissam, Triangulating Constitutional Theory: Power, Time, and Everyman, 53 BUFF. L. REV. 269, 310 & n.158 (2005);
250. Bush v. Vera, 517 U.S. 952, 1077 (Scalia, J., dissenting);
251. Griswold v. Connecticut, 381 U.S. 479, 510 n.l (Black, J., dissenting).
252. U.S. CONST. amend. V; U.S. CONST, amend. XIV.
253. 15 U.S.C. § 1 (2004).
254. Of course, one need not be a realist or crit to think that vague line-drawings are pandemic in the law. See John Hasnas, Back to the Future from Critical Legal Studies Forward to Legal Realism, Or How Not to Miss the Point of the Indeterminacy Argument, 45 DUKE L.J. 84, 86-90 (1995). The deeper questions are whether the new myth's vague categories present the wrong framework for analysis, with special risks of abuse, and whether this particular game is worth the candle.
255. See Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004); Bradley & Goldsmith, Customary International Law, supra note 7, at 856.
256. Perhaps the closest to rejecting all federal common law is Redish, supra note 108, at 786;
257. Martin H. Redish, Federal Common Law and American Political Theory: A Response to Professor Weinberg, 83 Nw. U. L. REV. 853, 859 (1989). Clark also claims that most traditional areas of federal common law are not "judge-made" law after all.
258. Clark, Federal Common Law, supra note 9, at 1271-74.
259. See Hindernder v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938).
260. See Friendly, Praise, supra note 10, at 412-18;
261. but see Ernest A. Young, It's Just Water: Toward the Normalization of Admiralty, 35 J. MAR L. & COM. 469 (2004) (arguing against admiralty's "enclave" status).
262. See FALLON, JR. ET AL., supra note 9, at 15.
263. For example, one can (barely) imagine a federal court's deciding that its jurisdiction over admiralty and interstate disputes did not create causes of action, nor authorize the creation of substantive law to be applied. Absent further (and surely forthcoming) legislative action, such a court would refuse to grant relief.
264. Friendly, Praise, supra note 10, at 412-18.
265. See, e.g., Merrill, supra note 11, at 47.
266. But cf. Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 883, 912 (1986) (criticizing purely historical analyses).
267. See, e.g., Young, supra note 132, at 521.
268. To make matters worse, some new-myth advocates may need constitutionally based answers to the identification problems. First, insofar as the new myth views Erie as a landmark with wide-ranging effect, constitutional pretense may be necessary. For example, if new-myth jurists wish to argue about Erie in contexts that do not involve state law, the Rules of Decision Act is of no help, for it governs only "cases where [the laws of the several States] apply." 28 U.S.C. § 1652 (2000). Relatedly, it would be paradoxical for the new myth's proponents to cite a common-law source for their idea of resisting federal common law.
269. See, e.g., Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564, 1622 (2006) [hereinafter Resnik, Law's Migration]. Finally, some new-myth advocates assert that their theory can alter the meaning of statutes, like the ATS, which requires reference to the Constitution as higher law. See infra Part II.C.2.C
270. Swpra Part II. B.1-2.
271. See FREYER, supra note 22, at 48-62 (collecting cases). This irony may carry particular sting for scholars who would connect Erie to legal realism.
272. See, e.g., Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 17 (2006);
273. Goldsmith & Walt, supra note 46, at 674 n.7 (criticizing sources making this argument). From a legal realist perspective, Erie recognized that state common-law precedents "make" law; judges do not "find" such law by simply analyzing implicit natural principles. By contrast, the new myth insists that courts should not "make" federal common law; they should only "find" law within statutes or constitutions. Taking legal realism seriously should require an acknowledgment that both common law and statutory interpretation involve fundamentally similar judicial lawmaking.
274. See Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. U. L. REV. 585, 627-644 (2006).
275. Customary international law is nontreaty law that arises from patterns in nations' behavior, which countries follow from a sense of legal obligation. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987).
276. Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 AM. J. INT'L L. 740, 743 (1939).
277. See LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 37-40 (1995).
278. See Bradley & Goldsmith, Customary International Law, supra note 7, at 853-54.
279. See Bradley et al., supra note 7, at 870, 871 n.3, 872-74;
280. Ryan Goodman & Derek P. Jinks, Filartiga's Firm Footing: International Human Rights and Federal Common Law, 66 FORDHAM L. REV. 463, 468-69 (1997).
281. See, e.g, William S. Dodge, Customary International Law and the Question of Legitimacy, 120 HARV. L. REV. F. 19, 24 (2007);
282. William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 RUTGERS L.J. 635 (2006);
283. T. Alexander Aleinikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 AM. J. INT'L L. 91 (2004);
284. Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REV. 2241, 2254-61 (2004);
285. Beth Stephens, Sosa v. Alvarez-Machain: "The Door Is Still Ajar" for Human Rights Litigation in U.S. Courts, 70 BROOK. L. REV. 533, 548 (2004);
286. Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43, 47 (2004);
287. Goodman & Jinks, supra note 147, at 469;
288. Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 380 (1997).
289. See Bradley & Goldsmith, Customary International Law, supra note 7, at 816 (citation omitted).
290. Bradley et al., supra note 7, at 871. Note that even this language complicates the notion of "common law" because if Congress or the Constitution, in "authorizfing]" judicial activity, prescribes the content of decisions applying customary international law, such decisions may no longer qualify as judge-made "common law." Cf. Clark, Federal Common Law, supra note 9, at 1271-75.
291. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, III, The Current Illegitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 319 (1997) [hereinafter Bradley & Goldsmith, Current Illegitimacy];
292. Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 MICH. L. REV. 2129 (1999) [hereinafter Bradley & Goldsmith, Pinochet];
293. Jack Goldsmith, Should International Human Rights Law Trump U.S. Domestic Law?, 1 CHI. J. INT'L L. 327 (2000).
294. The Revisionists' focus on Erie is only amplified in their recent work. See, e.g., Bradley et al., supra note 7, at 873 ("[W]e attempt to focus the debate more directly on Erie and its implications for modern federal common law. Like the Court in Sosa ... we believe that Erie is centrally relevant to the current status of [customary international law] in U.S. courts."); id. passim (mentioning "Erie" 169 times).
295. See, e.g., Bradley & Goldsmith, Customary International Law, supra note 7, at 824;
296. Bradley et al., supra note 7, at 882-84.
297. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) ("[I]t is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances...."); The Paquete Habana, 175 U.S. 677, 700 (1900).
298. See Bradley & Goldsmith, Customary International Law, supra note 7, at 856-57.
299. Cf. id., at 886.
300. See id. at 852-853 ("Because the appropriate 'sovereigns' under the U.S. Constitution are the federal government and the states, all law applied by federal courts must be either federal law or state law. After Erie, then, a federal court can no longer apply [customary international law] in the absence of some domestic authorization to do so . .. .") (citations omitted).
301. Customary international law covers many substantive areas, some of which do not affect state interests. See, e.g., The Brig Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635, 666-670 (1862) (prize, capture, and the definition of civil war);
302. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 960 (4th Cir. 1999) (the law of the sea) (quoting United States v. W.M. Webb, Inc., 397 U.S. 179, 191 (1970));
303. Doe I v. Unocal Corp., 395 F.3d 932, 945 (9th Cir. 2002), dismissed per stipulation, 403 F.3d 708 (9th Cir. 2005) (rape and forced labor);
304. ORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 1472-73 (4th ed. 2001) (mineral resources of the high seas).
305. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 HARV. L. REV. 2260, 2260 (1998) [hereinafter Bradley & Goldsmith, Federal Courts] (disclaiming any argument that customary international law is state law: "we have not in fact argued that [customary international law] is state law");
306. Bradley & Goldsmith, Current Illegitimacy, supra note 151, at 349-50 (similar);
307. Harold Hongju Koh, Is International Law Really State Law?, III HARV. L. REV. 1824, 1861 (1998).
308. See, e.g., Obasi Okafor-Obasi, The International Criminal Court and Human Rights Enforcement in Africa, 12 ILSA J. INT'L & COMP. L. 87, 96 (2005).
309. See, e.g., Bradley et al., supra note 7, at 886.
310. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71 (1938).
311. See Bradley & Goldsmith, Federal Courts, supra note 159, at 2260 ("[O]ur view is that [customary international law] should not be a source of law for courts in the United States unless the appropriate sovereign - the federal political branches or the appropriate state entity - makes it so.").
312. U.S. CONST, art. I, § 8, cl. 10; see Dodge, supra note 148, at 24. See generally J. Andrew Kent, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 TEX. L. REV. 843 (2007).
313. See supra Part I.B.
314. U.S. CONST, art. I, § 8, cl. 10.
315. The Revisionists indirectly acknowledge their new-myth roots, claiming that sometime after 1938, "[Erie's] reasoning about constitutional limitations on the federal government's power to invade state rights evolved into an argument about limitations on the federal judiciary." Bradley et al., supra note 7, at 877 (emphasis added). Merrill, supra note 11, at 15 ("[T]he federalism principle identified by Erie ... has been silently transformed from a general constraint on ... the federal government into an attenuated constraint that applies principally to .. . the federal judiciary." (emphasis added)). The Revisionists do not explain whether this "evolution" and "silent transformation" retains any deep link to Erie, or whether such "evolutionary," "transformed" results are ultimately coherent.
316. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 114 reporters note 1 (1987).
317. The Revisionists originally argued that Charming Betsy should be based solely on separation-of-powers considerations, not on assumptions about legislative intent. See Bradley & Goldsmith, Customary International Law, supra note 7, at 871-72 (arguing that Charming Betsy would be "questionable" if based on the idea that "Congress generally wishes to conform its legislation to the requirements of international law"). The Revisionists claimed that Charming Betsy should apply only where there is "clear evidence" of the international law principles at stake, and where such principles are consistent with "deference to the political branches." Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GEO. L.J. 479, 532-33 (1998) [hereinafter Bradley, Charming Betsy]; id. at 536 (proposing that this reconceptualization "has important implications for the proper scope and role of the canon"); see also Bradley & Goldsmith, Customary International Law, supra note 7, at 871-72.
318. See Bradley et al, supra note 7, at 921.
319. See Bradley, Charming Betsy, supra note 169, at 532-33; Bradley et al., supra note 7, at 921.
320. See Edward T. Swaine, The Local Law of Global Antitrust, 43 WM. & MARY L. REV. 627, 753 (2001); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665, 675 (1986).
321. See Bradley et al., supra note 7, at 902-06.
322. 28 U.S.C. § 1350 (2000).
323. Bradley et al., supra note 7, at 887.
324. See id. at 910; id. at 915-24.
325. See id. at 878 (noting that the Supreme Court's list of post-Erie enclaves lacks adequate explanation).
326. Id. The Revisionists claim that these principles "can be discerned from Erie itself and the various post-Erie federal common law decisions . . . ." Id. Yet none of the three appears in "Erie itself." Compare supra Part ILA, with Bradley et al., supra note 7, at 878-881 & nn.40-61. On the contrary, the Revisionists' doctrinal support comes from cases like Northwest Airlines, Inc. v. Transportation Workers Union, 451 U.S. 77, 95 (1981), City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981), and Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 98 (1991). See Bradley et al., supra note 7, at 878-881 & nn.40-61. The Revisionists' choice to use Erie as a nominal placeholder for these other, significantly different cases illustrates a common feature of new-myth arguments.
327. All three also are based on "extant federal law," are "ground[ed] in a federal law source," and must be consistent with federal policy choices. See Bradley et al., supra note 7, at 878.
328. Cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 112, 141 (1921).
329. See supra Part I.A.
330. See Bradley et al., supra note 7, at 918.
331. See, e.g., Alton B. Parker, The Common Law Jurisdiction of the United States Courts, 17 YALE L.J. 1, 6 (1907).
332. See infra Part II.C.2.b.
333. See, e.g., Molot, supra note 141, at 20-21; Brown, supra note 8, at 625; Friendly, Praise, supra, note 10, at 405-07.
334. The Revisionists' application of age-based standards illustrates these problems. Two Revisionist enclaves - admiralty and interstate disputes - can be traced to the Founding, yet Founding-era traditions are no firm credential in this context. See supra note 183 and accompanying text. By contrast, the Revisionists acknowledge that their third "enclave," regarding foreign head-of-state immunity, did not emerge in modern form until after 1976. Before that time, immunities of heads of state and foreign governments were both governed by common law, with deference for executive preferences. Problems may also arise with respect to customary international law, which has long been recognized as "part of our law." Why should that age-old practice not qualify as an "enclave"? See infra note 187 and accompanying text. Because the Revisionists have not recognized the full theoretical importance of drawing clean lines identifying enclaves, they have not developed any adequately workable or theorized test for doing so.
335. See Bradley et al., supra note 7, at 875, 892-93; see also Bradley & Goldsmith, Current Illegitimacy, supra note 151, at 322-24.
336. See sources cited supra note 148.
337. See Amy Coney Barrett, A Theory of Procedural Common Law, 94 VA. L. REV. (forthcoming June 2008) (manuscript at 3, on file with author); cf. id. at 56 (concluding that such law is grounded in Article III).
338. See Helen Hershkoff, State Courts and the "Passive Virtues ": Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1855-75 (2001).
339. See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941).
340. See, e.g., Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148-49 (1988) (rejecting an injunction because federal forum non conveniens rules do not bind the state, which has different forum non conveniens rules); Boyle v. United Techs. Corp., 487 U.S. 500, 505-06 (1988) (construing a military contractor's defense in a case applying the Federal Tort Claims Act, which requires litigation in federal court); Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979) (refusing to displace state contract law due to federal patent law, where jurisdiction is also exclusively federal); Howard M. Erichson, Interjurisdictional Preclusion, 96 MICH. L. REV. 945, 965-69 (1998) (describing different preclusion rules in state and federal courts). See generally Resnik, Law's Migration, supra note 139, at 1622; MICHAEL ASIMOW ET AL., STATE AND FEDERAL ADMINISTRATIVE LAW 3 (2d ed. 1998) (demonstrating that state administrative law is independent of federal law).
341. Of course, many rules and results in the text's listed fields do bind state courts, at least in some contexts. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) (holding that federal common law governs the preclusive effect of judgments in diversity); Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (explaining how patent issues can be litigated in state court, despite the exclusivity of federal jurisdiction with respect to plaintiffs' filing patent claims). My point is that not all federal law binds state courts.
342. See, e.g., Aleinikoff, supra note 148, at 91; Young, Sorting, supra note 60, at 368.
343. See sources cited supra note 158.
344. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 18 (1980); cf. Burbank, supra note 29, at 1024 ("Over time, one person's neglect becomes another's ignorance.").
345. 542 U.S. 692 (2004).
346. 28 U.S.C. § 1350 (2000).
347. Sosa, 542 U.S. at 712.
348. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987).
349. See, e.g., In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994). For post-Sasa decisions, see, for example, Taveras v. Taveraz, 477 F.3d 767, 781-82 (6th Cir. 2007), and Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007).
350. See Bradley & Goldsmith, Current Illegitimacy, supra note 151, at 357-63 (arguing that "[t]he United States has no general duty under international law to provide civil remedies in its courts for human rights violations committed abroad by foreign government officials against aliens" and that a more active reading of the ATS might have "profound collateral implications" far beyond the First Congress's intention).
351. See id. at 358-60.
352. See Bradley et al., supra note 7, at 871; see also Trimble, supra note 172, at 716 (arguing that "courts should never apply customary international law except pursuant to political branch direction").
353. See generally Sosa v. Alvarez-Machain, 542 U.S. 692, 697 (2004).
354. Alvarez-Machain also brought claims against the United States itself under the Federal Tort Claims Act; the Court unanimously dismissed those claims. Id. at 700-712.
355. See, e.g., id. at 726; id. at 740-41 (Scalia, J., concurring in part and concurring in the judgment). The closest that any litigant came was to argue, in effect, that customary international law should be considered an "enclave." See Brief for the Respondent at 31, Sosa v. Alvarez-Machain, No. 03-339, 542 U.S. 692 (2004) [hereinafter Sosa Respondent Brief].
356. Sosa, 542 U.S. at 719.
357. See id. at 724.
358. Id. at 712.
359. See, e.g., Bradley & Goldsmith, Current Illegitimacy, supra note 151, at 354-55.
360. Sosa, 542 U.S. at 724. Souter's historical support for limiting the number of originally intended ATS torts is noticeably light. See id. at 720 (citing Blackstone and the First Judiciary Act, neither of which substantiates the historical need for numerical limits); cf. id. at 719 (citing considerably stronger historical evidence for the claim that the First Congress intended some form of litigation to proceed under the ATS).
361. Id at 725.
362. Id.; see id. at 725-28.
363. Id. at 725 (internal quotation omitted).
364. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938).
365. Sosa, 542 U.S. at 725. Of course, there is nothing "transcendental" about ATS litigation, and in any event, judges' estimates about whether the law they apply is transcendent should be firmly subordinate to their overall goal of implementing Congress's statutorily expressed will. See supra Part I.A.
366. Id. at 726.
367. Id. (citation omitted).
368. Id.
369. Id. at 729 (citation omitted).
370. Id. at 729-30 ("Erie did not in terms bar any judicial recognition of new substantive rules . . . For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. ... It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.") (citations omitted).
371. The Revisionists have adopted a conciliatory tone in analyzing the Sosa majority. Yet they also gently acknowledge that Sosa diverged from their position in holding that the "purely jurisdictional" ATS authorizes judicial recognition of common-law causes of action. Bradley et al., supra note 7, at 896.
372. Sosa, 542 U.S. at 724.
373. Id. at 732; see also id. at 732 n.20, 733 n.21.
374. Id. at 732-33.
375. Id. at 735.
376. Id. at 734.
377. Id. at 736.
378. Bradley et al., supra note 7, at 897.
379. See Sosa, 542 U.S. at 739-40, 750 (Scalia, J., concurring in part and concurring in the judgment) (citing Bradley & Goldsmith, supra note 7, at 824).
380. Id. at 739-40.
381. Id. at 740-41; see also id. at 744.
382. Id. at 743.
383. See id. at 750.
384. Id.
385. Id. at 742 (citing Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)). Bivens claimed that federal agents had violated the Fourth Amendment by entering his apartment and arresting him, threatening to arrest his family, and taking him to a federal courthouse for a strip search. Bivens, 340 U.S. at 389.
386. See Sosa, 542 U.S. at 742-43 (Scalia, J., concurring in part and concurring in the judgment).
387. Id. at 742 (citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)).
388. Scalia is not the first to make this argument. In 1980, then-Justice Rehnquist filed a dissenting opinion arguing that Erie conflicts with Bivens. See Carlson v. Green, 446 U.S. 14, 31-33 (1980) (Rehnquist, J., dissenting). None of Rehnquist's colleagues joined that opinion, and no Justice has positively cited it since that time. Cf. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 82 n.10 (2001) (Stevens, J., dissenting) (citing Rehnquist's Carlson dissent as an example of undue "hostility to the core of Bivens").
389. Compare Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117, 1121 (1989), with Merrill, supra note 11, at 52.
390. Justice Harlan's concurrence was the only Bivens opinion even to cite Erie, and he viewed the two decisions as quite compatible with each other: However broad a federal court's discretion concerning equitable remedies, it is absolutely clear - at least after Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) - that in a nondiversity suit a federal court's power to grant even equitable relief depends on the presence of a substantive right derived from federal law. . . . Thus the interest which Bivens claims - to be free from official conduct in contravention of the Fourth Amendment - is a federally protected interest. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 400 (1971) (Harlan, J., concurring in the judgment). Nonetheless, Scalia's suggestion that Bivens remedies are, in some sense or other, "common law" is quite popular. Cf. Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117, 1124, 1135, 1141 (1989).
391. Sosa, 542 U.S. at 744 (Scalia, J., concurring in part and concurring in the judgment).
392. Id. at 744-46 (citation omitted).
393. Id. at 732.
394. Id. at 727.
395. Id. at 736.
396. Id.
397. Id. at 743 (Scalia, J., concurring in part and concurring in the judgment) ("[C]reating a federal command ... out of 'international norms,' and then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is nonsense upon stilts.").
398. See Bradley et al., supra note 7, at 919-20 ("An oft-cited example is the federal piracy statute, which provides that '[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.'") (citing 18 U.S.C. § 1651 (2000)).
399. Broh-Kahn, supra note 100, at 57.
400. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 91 (1938) (Reed, J., concurring in part).
401. Supra Part I.B.
402. Thus far, scholars have generally invoked "constitutional values" influencing judicial analysis, but have not drawn firm conclusions about constitutionality per se. See, e.g., sources cited supra note 108.
403. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1554 (1987).
404. See Sosa v. Alvarez-Machain, 542 U.S. 692, 749-50 (2004) (Scalia, J., concurring in part and concurring in the judgment) (addressing such issues obliquely at best, as a matter "not necessary to resolution of the present action").
405. Id. at 732 (majority opinion).
406. Id. at 744 (Scalia, J., concurring in part and concurring in the judgment).
407. Id. at 727-28 (majority opinion).
408. Souter's opinion counsels courts to take "great caution" in creating remedies for violations of new norms of international law. Id. at 227-28.
409. See supra Part II.A-C.
410. Detainee Treatment Act of 2005, Pub. L. No. 109-148, §§ 1005(e)(1)-(3), 119 Stat. 2680, 2741-43.
411. Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, 41 WEEKLY COMP. PRES. DOC. 1918, 1919 (Dec. 30, 2005) (emphasis added); see generally Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1247-49 (2006). President Bush's primary focus in this signing statement may have been to hamstring the "McCain Amendment" concerning abusive detention practices. See Detainee Treatment Act of 2005 § 1003; see also Harold Hongju Koh, Is There a "New" New Haven School of International Law?, 32 YALE J. INT'L L. 559, 568 (2007); Jamie Mayerfeld, Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture, 20 HARV. HUM. RTS. J. 89, 103-05 (2007). As the Bush signing statement indicates, however, its legal theory was by no means limited to the McCain Amendment.
412. See Sosa v. Alvarez-Machain, 542 U.S. 692, 744 (2004) (Scalia, J., concurring in part and concurring in the judgment).
413. See id. at 724 (majority opinion); id. at 741-42, 744 (Scalia, J., concurring in part and concurring in the judgment); Meltzer, supra note 108, at 541.
414. See Sosa, 542 U.S. at 741-42 (Scalia, J., concurring in part and concurring in the judgment). Although President Bush did not cite Erie itself as legal support, he did cite Alexander v. Sandoval, 532 U.S. 275 (2001), which tracks earlier cases concerning "implied causes of action" that new-myth advocates have long viewed as an extension of Erie. See Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, 41 WEEKLY COMP. PRES. Doc. 1918, 1919 (Dec. 30, 2005); see also Brown supra note 8, at 617-18 (tracing efforts by thenJustice Rehnquist and Justice Powell to apply Erie to implied-cause-of-action cases).
415. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2764-69 (2006). The United States' Hamdan brief did not mention the Bush signing statement. See Brief for Respondents, Hamdan v. Rumsfeld, No. 05-184, 126 S. Ct. 2749 (2006). In Sosa, however, the United States did argue a position much like Scalia's, and if that view had prevailed, the DTA and the ATS might well have seemed indistinct. See Sosa Respondent Brief, supra note 207, at 1-14. For example, although Guantanamo detentions do not raise Erie's concerns over state law and state courts, neither does customary international law. Supra Part II.C.2. Indeed, the new myth's main contribution is to exchange old Erie's dusty federalism for shiny separation-of-powers principles, and the latter are crucial to Guantanamo detentions. See J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 GEO. L.J. 463, 476-78 (2007).
416. Hamdan, 126 S. Ct. at 2764-65 (plurality opinion).
417. Id. at 2762-69.
418. Id. at 2813 (Scalia, J., dissenting). Scalia explained that the DTA was not a "suspension" of habeas corpus because it provided detainees with the "collateral remedy" of D.C. Circuit review, which he found adequate to test the legality of the detainees' imprisonment. Id. at 2818. That argument would have been impossible if a common-law cause of action were unavailable under the DTA.
419. The Military Commissions Act of 2006 (MCA) does not change this Part's analysis. Although the MCA explicitly creates a cause of action for reviewing military commission verdicts, it did nothing to create a cause of action for reviewing Guantanamo detentions. See Military Commissions Act of 2006, Pub. L. No. 109-366, § 3(a)(1), 120 Stat. 2600, 2604 (codified at 10 U.S.C. § 948j(b) (2006)).
420. See, e.g., In re Yamashita, 327 U.S. 1, 44 (1946) (Rutledge, J., dissenting); Ex Parte Quirin, 317 U.S. 1 (1942); Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
421. See generally Hamdan, 126 S. Ct. at 2763-98.
422. See Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, 2608-09 (codified at 10 U.S.C. § 949a (2006)).
423. See U.S. CONST, art. II; 10 U.S.C. § 821 (2000) (current version at 10 U.S.C. § 821 (2006)).
424. Hamdan, 126 S.Ct. at 2829 (quoting Madsen v. Kinsella, 343 U.S. 341, 346-47 (1952)).
425. S. Rep. No. 130, at 40 (1916) (statement of Judge Advocate General Enoch A. Crowder).
426. See Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1265-1266 (2002); see also Hamdan, 126 S. Ct. at 2773.
427. See Katyal & Tribe, supra note 278, at 1278-83.
428. Hamdan, 126 S. Ct. at 2774 & n.22 (quoting 10 U.S.C. § 821 (2000)).
429. See Major Jan E. Aldykiewicz & Major Geoffrey S. Corn, Authority to Court-Martial Non-U.S. Military Personnel for Serious Violations of International Humanitarian Law Committed during Internal Armed Conflicts, 167 MIL. L. REV. 74, 101-02 (2001).
430. Hamdan, 126 S. Ct. at 2772-74.
431. Id. at 2772-73.
432. Id. at 2773-74.
433. Id. at 2774.
434. Id. at 2775.
435. Although the MCA creates more explicit statutory authorization for military commissions than had previously existed, the Act does not change the importance of Hamdan's decision to reject the new myth. Also, the MCA disclaims any effect on the President's common-law authority to establish military commissions "for areas declared to be under martial law or in occupied territories should circumstances so require." Military Commissions Act of 2006, Pub. L. No. 109-366, § 2, 120 Stat. 2600, 2600 (codified at 10 U.S.C. § 948a (2006)). The Act further leaves unspecified whether the President may invoke common-law authority to try United States citizens in military commissions.
436. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812); Kathryn Preyer, Jurisdiction To Punish, Federal Authority, Federalism, and the Common Law of Crimes in the Early Republic, 4 L. & HIST. REV. 223 (1986); Robert C. Palmer, The Federal Common Law of Crime, 4 L. & HIST. REV. 267 (1986); Stephen B. Presser, The Supra-Constitution, the Courts, and the Federal Common Law of Crimes: Some Comments on Palmer and Preyer, 4 L. & HIST. REV. 325 (1986).
437. See Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 NOTRE DAME L. REV. 1149, 1151-52 (2006).
438. Ex Parte Quirin, 317 U.S. 1, 28-29 (1942) (emphasis added).
439. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 (2006) (plurality opinion); see also id. at 2777.
440. Id. at 2780.
441. Id. at 2761, 2778.
442. Id. at 2780.
443. As Stevens explained in a footnote: "The caution that must be exercised in the incremental development of common-law crimes by the judiciary is . . . all the more critical when reviewing developments that stem from military action." Id. at 2780 n.34.
444. Id. at 2829 (Thomas, J., dissenting).
445. Id. at 2830.
446. See, e.g., id. at 2786 (plurality opinion); id. at 2823 (Thomas, J., dissenting).
447. Compare id. at 2775-86 (plurality opinion), with id. at 2834-38 (Thomas, J., dissenting).
448. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812).
449. See Presser, supra note 288, at 335 (noting that the eighteenth century's common law of crimes was thought "necessary to the preservation of our early republic" as "a power to deal with unanticipated threats").
450. Again, the MCA's definition of statutory crimes for commissions does not change Hamdan's rejection of the new myth. Also, the MCA itself contains several common-law components. Some offenses are defined to include customary "law of war," which will require common-law interpretation as before. Also, the MCA's stated purpose was to "codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission." Military Commission Act of 2006, Pub. L. No. 109-366, § 3, 120 Stat. 2600, 2624 (codified at 10 U.S.C. § 950p(a) (2006)); see also id. § 3, 120 Stat, at 2624 (codified at 10 U.S.C. § 950p(b) (2006)) ("Because the provisions of this subchapter ... are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter."). What remains unclear is whether defendants like Hamdan can be charged based on pre-MCA criminal acts, even when the charged crime - e.g., conspiracy - was not a crime under pre-MCA common law.
451. In re Yamashita, 327 U.S. 1, 42 (1946) (Rutledge, J., dissenting).
452. See Craig Green, Wiley Rutledge, Executive Detention, and Judicial Conscience at War, 84 WASH. U. L. REV. 99, 159-169 (2006) [hereinafter Green, Wiley Rutledge].
453. See Burt Neuborne, Spheres of Justice: Who Decides?, 74 GEO. WASH. L. REV. 1090, 1100 n.72 (2006); see also Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 CONST. COMMENT. 261, 281-84 (2002).
454. See, e.g., In re Yamashita, 327 U.S. at 4.
455. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2788 (2006).
456. Id. at 2795-96.
457. Id. at 2786 (citations omitted).
458. See, e.g., Bradley et al., supra note 7, at 925 n.294.
459. See Hamdan, 126 S. Ct. at 2797-98.
460. See id. at 2810 (Scalia, J., dissenting).
461. See Green, Wiley Rutledge, supra note 304, at 167-69.
462. Hamdan, 126 S. Ct. at 2799 (Kennedy, J., concurring).
463. See id. at 2772-74, 2794-98 (plurality opinion).
464. See id. at 2839-49 (Thomas, J., dissenting).
465. For example, Hamdan's counsel did not press common-law arguments in the Supreme Court, see Brief for Petitioner Salim Ahmed Hamdan at i, Hamdan v. Rumsfeld, No. 05-184, 126 S. Ct. 2749 (2006), nor did the Hamdan majority explicitly apply common-law reasoning.
466. See Bradley et al, supra note 7, at 881-90.
467. See generally sources cited supra note 5.
468. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
469. See, e.g., Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 99 (2006); Erwin Chemerinsky, The Assault on the Constitution: Executive Power & the War on Terrorism, 40 U.C. DAVIS L. REV. 1 (2006).
470. Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring).
471. For other examples, see Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of Federal Courts, 84 COLUM. L. REV. 1433, 1469-1472 (1984), and Barrett, supra note 189, at 5.
472. The term "congressional primacy," as used in the text, refers to the source of legal authority, not its implementation. See Westen & Lehman, supra note 2, at 327-30. Thus, for example, nothing here casts doubt on judicial authority "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Nor is my position relevant to works concerning "popular constitutionalism." See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
473. U.S. CONST, art. I, § 8.
474. See U.S. CONST, art. II, § 1; U.S. CONST, art. III, § 1; Beale, supra note 323, at 1473-74. Although Article III provides a fairly detailed list of the "cases" and "controversies" over which federal courts may exercise jurisdiction, the more important question is what judges may do with that jurisdiction, i.e., what the "judicial power" entails.
475. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
476. See id. at 636-37. There are a few distinctive constitutional limits on what courts can do, as compared with other branches. See generally Massachusetts v. EPA, 127 S. Ct. 1438, 1452-55 (2007); Letter from Chief-Justice Jay and Associate Justices to President Washington (Aug. 8, 1793), in 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, 1782-1793, at 488-89 (Henry P. Johnston ed. 1890-1893) (refusing to offer an advisory opinion). Such limits have limited relevance to analysis of federal common law, however.
477. See supra Parts ILC, ILD. 1.
478. Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
479. See id. at 638. One constitutionally charged example may involve suspensions of habeas corpus. See generally Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Amanda L. Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. 333 (2006).
480. If the Rules of Decision Act did not bar Swift's federal general common law, classic Erie cases would exemplify Jackson's second category, the "zone of twilight." See Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Even under this branch of the Jacksonian framework, there are strong subconstitutional reasons to disfavor federal general common law. See, e.g., supra note 101.
481. Id. at 638. The fact that presidents confront different "imperatives" and "imponderables" from those facing judges does not change the limited role for "abstract theories" regarding both. Justice Frankfurter's concurring opinion recognized a similar point: "[T]he content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government." Id. at 610 (Frankfurter, J., concurring) (emphasis added).
482. See id. at 637 (Jackson, J., concurring).
483. See, e.g., Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 541-45 (2005) (discussing congressional silence in the separation-of-powers context). See generally Henry Wolf Biklé, The Silence of Congress, 41 HARV. L. REV. 200, 200 (1927) (describing Virgil's genius as one of "saying much in little and often in silence") (citing J. W. MACKAIL, VIRGIL AND HIS MEANING TO THE WORLD OF TO-DAY 67 (1922) (quoting John Dryden)).
484. See, e.g., Katyal, supra note 321, at 99.
485. Jackson's views on presidential power were self-consciously influenced by his own work in the Executive Branch: That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring); see also EUGENE C. GERHART, ROBERT H. JACKSON: COUNTRY LAWYER, SUPREME COURT JUSTICE, AMERICA'S ADVOCATE 125-27 (2003).
486. For a remarkable work about common-law judging and its relationship to statutory law, see GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). Calabresi's hypothesis that common-law courts could be granted power "to treat statutes in precisely the same way that they treat the common law" has been an inspirational force behind this Article, which also draws heavily upon Professor Calabresi's class and (more modestly) upon Judge Calabresi's jurisprudence. Id. at 82.
487. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
488. I should also note that my efforts to displace Erie from debates over separation of powers and judicial role need not undermine Erie's effect on subconstitutional choice-of-law issues. Cf. Clermont, supra note 23 at 46-57 (arguing that Erie's significance in such fields is underappreciated).
489. See Westen & Lehman, supra note 2, at 336 ("In each case, within the constraints of stare decisis, the court must conform to existing legislative policy, just as it must continually amend and modify its course of decisions to account for changes in legislative policy. In each case, too, the court must fill in gaps in legislatively declared policy by making its best judgment of what represents, not its personal morality or some universal morality, but the 'political morality' of the society for which it speaks - or what Learned Hand called 'the common will.'") (quoting Ronald Dworkin, How to Read the Civil Rights Act, N.Y. REV. BOOKS, Dec. 20, 1979, at 37, 41-42; LEARNED HAND, THE SPIRIT OF LIBERTY 109 (3d ed. 1960)).