Bring back federal common law

Erie Railroad Co. v. Tompkins (1938) was the New Deal-era decision that directed federal courts to apply the law of the states in which they are located, and in so doing abolished a huge body of federal common law. In a new series of posts based on his book The Upside-Down Constitution, Michael Greve argues that Erie was wrongly decided and in practical terms a gigantic mistake that needs correcting. [Liberty and Law]


  • I agree–and the intellectual basis for doing so is well stated in the dissent of Justices Murphy and Rutledge in Guaranty Trust of New York v. York!

  • It is cool to question established legal principles that we now take for granted. But the chances of Erie getting overturned now are the same as Ron Paul being elected president.

  • I’ve heard from various individuals that upending federal common law through Erie was a bad move (from the standpoint of maintaining limited government.) In all honesty, I’m not sure if I understand why. At face value, it would seem that the federal courts deferring to state law would be a good thing, as it restricts the law-making power of the federal government relative to the states. Liberty-favoring individuals however tend to support the system prior to Erie though.

    Is the reasoning, that federal courts deferring to state laws implies that U.S. citizenship subjugates “citizens” of one state to the laws of another, thereby reducing the actual meaning of state citizenship?