Notes on Erie v. Tompkins

Erie Railroad Co. v. Tompkins, decided in 1938, is required reading in every U.S. law school. In Erie, the U.S. Supreme Court concluded that the federal courts do not have the judicial power to create “general federal common law” when adjudicating State law claims. (See historical marker pictured below.) Over the summer, 80 years after Erie was decided, we stumbled upon three scholarly papers (•) exploring different aspects of this landmark case:

  1. Finding Law” by Stephen A. Sachs. Professor Sachs carefully questions two fundamental assumptions the Supreme Court relied on when it decided Erie, one regarding the ultimate source of law; the other regarding judges’ ability to find law when they decide close cases. (Note: we wrote up a three-part review of Sachs’s paper on this blog on 13-15 July.)
  2. Benjamin Cardozo and the Death of the Common Law” by John C. P. Goldberg. Among other things, Professor Goldberg revisits Justice Cardozo’s pivotal role in the early stages of the Erie case (before the Supreme Court agreed to hear the case) and explores some of the unintended consequences of the Erie decision. (Hat tip: Anthony Gaughan, via The Faculty Lounge.)
  3. The Ballad of Harry James Tompkins” by our friend and colleague Brian Frye. Professor Frye’s beautiful paper contains actual trial testimony as well as several photographs of the scene of the accident that were introduced into evidence at the trial. On the basis of this evidence, he not only questions the standard account of the facts in Erie; he also makes a compelling case that we’ve gotten the facts of Erie all wrong. According to Frye, the plaintiff in this case almost certainly was not walking innocently along a footpath when he was injured by an oncoming train. Instead, he was most likely attempting to jump onto the train as a trespasser. (Double hat tip: Anthony Gaughan, again via TFL.)
  • All three drafts were posted on SSRN (Social Science Research Network) earlier this year: Sachs’s in March; Goldberg’s in May; Frye’s in July.
  • Related image

    Source: Frye (2018), p. 32.

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    One Response to Notes on Erie v. Tompkins

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