IN PRAISE OF JOSEPH STORY, SWIFT V.
TYSON AND "THE" TRUE NATIONAL
COMMON LAW
Arthur John Keeffe*
On January 16, 1964, at the House and Library of the Association
of the Bar of the City of New York, Henry J. Friendly, my classmate
at Elmira Free Academy (for whom I wrote my first column when he
was Editor-in-Chief of our school paper "The Vindex") delivered the
21st Annual Benjamin N. Cardozo Lecture, entitled: In Praise ol'
Erie-and of the New Federal common Law.' Judge Friendly was
once law clerk to Mr. Justice Brandeis and since everything Henry
does, is well done, you can be sure that the Justice could not have had
a more able lawyer to attempt a justification of his decision in Erie v.
Tompkins' even though I regard it as the worst by the Supreme Court
in this Century, ranking with Dred Scott in the last.
At the outset of his lecture, Judge Friendly paid his disrespects to
my often printed contention that Erie v. Tompkins represents the
triumph of the Harvard Law School Party Line of Gray, Holmes,
Warren, Frankfurter and Brandeis over their fellow Harvard graduate
Mr. Justice Joseph Story and his decision in Swift v. Tyson. 3 In a
footnote Henry says that I remind him "of Davy Crockett's fears
anent 'the big college or university' at Cambridge!" and he refers his
readers to "Hofstadler, Anti-Intellectualism in American Life. I
probably do. I went to that cow college in Ithaca, New York in Arts
and Law, called Cornell.
Hugo Black's attitude towards Swi/t v. Tyson comes from quite a
different background. As a lawyer in Alabama, Justice Black would
find himself in federal court and it would not follow the Alabama
law. This caused him (he will tell you) to lose cases in the federal
courts, he would have won in the Alabama courts. To this day, he
resents it.
I do not question that there were abuses of the Swift v. Tyson
* Professor of Law, Catholic University of America; Columnist, The American Bar
Association Journal.
I. H. Friendly, In Praise oJ Erie--and oJ the New Federal C'onton Law, 19 RECORD OF
N.Y.C.B.A. 64 (1964).
2. 304 U.S. 64 (1938).
3. 41 U.S. (16 Pet.) I (1842).
1969]
"'THE" TRUE NATIONAL COMMON LAW
doctrine, especially by this district judge or that and sometimes by a
Supreme Court Justice sitting at the Circuit. But neither Brandeis nor
Frankfurter cited such cases and the Supreme Court decisions were
not of that ilk.
I can agree, for instance, that it was wrong for the federal district
court in California to entertain an action in diversity by Senator
William Sharon of Nevada (who lived at and owned the Palace Hotel
in San Francisco) to have the federal court find he was not the
common law husband of Sarah Althea Hill as the California State
courts had held. The conduct of Stephen Field and District Judge
Lorenzo Sawyer in holding in contempt both Miss Hill and former
Chief Justice of the Supreme Court of California, David S. Terry was
regrettable. What was worse was the alleged murder of Terry by
Field's bodyguard, David Neagle. One can only bow his head in
shame that after California indicted Neagle for the murder of Terry,
the Supreme Court of the United States sprung him without trial
Of the cases in the Supreme Court, the one Justice Black loves to
cite to establish the evil of Swift v. Tyson is New York Lift Ins. Co.
v. Ganer.5 Well he should as he attacked Swift v. Tyson in that case
in 1938 on St. Valentine's Day 6 Erie did not come down until April
25, 1938, giving Hugo Black the dubious honor of being wrong before
Louis Brandeis.
Ganer is a case I love also because it was there I first appreciated
what a great Justice Hugo Black is. Shortly after the decision was
rendered, my Cornell classmate William Hearne argued with me for
an hour at the corner of Wall Street and Broadway that Justice
Black's dissent in Gamer was wrong.
There, you will recall, Mr. Justice Butler dealt with the
presumption against suicide in a typical insurance case and swallowed
hook, line and sinker the nonsense that Professor Thayer once
preached on that subject at Harvard Law School. Until Eddie
Morgan came to Cambridge from Yale and straightened out the law
of presumptions, Thayer had many a judge convinced that
presumptions like Houdini appear and disappear on the introduction
of evidence and walk and talk with the jurors. Morgan, thank God,
established that a presumption is evidence and never disappears,
4. In re Neagle, 135 U.S. I (1890); ,ee also R. KRONINGER. SARAH AND THE SIENATOR (1964);
BUCHANON, DAVID S. TERRY OF CALIFORNIA (1956); C. SWISHER. STIPIIEN J. FIELD:
CRAIFTSMAN OF THE LAW (1930).
5. 303 U.S. 161 (1938).
6. See A. MASON, HARLAN FISKI STONI: IILLAR O1 THE LAW (1956).
R.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
Thayer to the contrary notwithstanding. This, of course, was the
burden of Black's dissent in Garner and he never was more right.
In my view, Garner is an evidence case and a wrong one just as
Black said. But in a setting of Swift v. Tyson, I would argue to the
death that the federal courts should be allowed to determine their own
uniform rules of evidence. This is a position which Henry Friendly
seems to endorse in his Cardozo lecture and in the Supreme Court
today only Justices Black and Douglas oppose the right of the Court
to promulgate rules of evidence with congressional permission. For
reasons I have set forth elsewhere, I feel that this position of Black
and Douglas is very short-sighted and most unfortunate.7 As Henry
Friendly points out, the aftermath of Garner on remand was the
discovery of a Montana statute codifying what Justice Black had
argued was the law of Montana so that a new judgment for the
plaintiff was sustained8 and the Supreme Court denied certiorari.'
Garner was a mistake in every way.
What both Judge Friendly and Justice Black do in discussing the
wisdom of Erie v. Tompkins is to avoid considering Swift v. Tyson.
In Swift, we had an individual living in Maine, who as a bona fide
holder in due course, took the acceptance of the New Yorker, Tyson.
To collect, Swift had to sue in New York and when he does so, Tyson
tries to evade payment because the land he bought in Maine from
Norton and Keith was not as represented. I have always thought it
was under water.
His argument that Swift was not a holder in due course is
bottomed on Chancellor Kent's fallacious decision in Bay v.
Coddington0 to the effect that to be a bona tide holder, Swift must
acquire the acceptance of Tyson from Norton and Keith for a present,
as distinguished from a past consideration. You will recall that Swift
had previously been obliged to pay a protested note of Norton and
Keith; it was to pay this past debt he owed Swift, that Norton
endorsed to Swift, Tyson's acceptance.
You can read Henry Friendly's Cardozo Lecture and all its
footnotes from cover to cover and you can talk to Hugo Black from
now until doomsday but never will it be argued that Joseph Story was
wrong in deciding Swift v. Tyson as he did. For good reason, both
Friendly and Black want to talk about Erie, not Swiif v. Tyson.
7. Keeffe, .4 .Vaional Mhlnistry oJ Justice: The Tine is Ripe Ior Betterment, 40 A. B.A.J. 951
(1954).
8. 106 F.2d 375 (9th Cir. 1939).
9. 308 U.S. 621 (1931).
10. 5 Johns. Ch. 54 (1821), ajj'd, 20 Johns. Ch. 637 (N.Y. 1822).
1969]
"THE" TRUE NATIONAL COMMON
LA W
Moreover, after Swift v. Tyson, the then Supreme Court of Errors
and Appeals of New York refused to follow Bay v. Coddington and
agreed with Story. How could anyone do differently? To do so would
make the negotiability of a bill of exchange vary from state to state
and the whole purpose of our national Constitution would be
frustrated in the commerce field. The reform wrought by Gibbdns v.
Ogden," in outlawing state ship monopolies, would rise again with
respect to negotiable paper. To justify Erie, Friendly and Black would
have had to dissent from Marshall and Story in Gibbons v. Ogden.
Consider what Story said in Swift:
In all the various cases, which have hitherto come before us for
decision, this court has uniformly supposed, that the true interpretation
of the 34th section limited its application to state laws, strictly local,
that is to say, to the positive statutes of the state, and the construction
thereof adopted by the local tribunals, and to rights and titles to things
having a permanent locality, such as the rights and titles to real estate,
and other matters immovable and intra-territorial in their nature and
character. It never had been supposed by us, that the section did apply,
or was designed to apply, to questions of a more general nature, not at
all dependent upon local statutes or local usages of a fixed and
permanent operation, as, for example, to the construction of ordinary
contracts or other written instruments, and especially to questions of
general commercial law, where 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 true exposition of the contract
or instrument, or what is the just rule furnished by the principles of
commercial law to govern the case. And we have not now the slightest
difficulty in holding, that this section, upon its true intendment and
construction, is strictly limited to local statutes and local usages of the
character before stated, and does not extend to contracts and other
instruments of a commercial nature, the true interpretation and effect
whereof are to be sought, not in the decisions of the local tribunals, but
in the general principles and doctrines of commercial jurisprudence.
Undoubtedly, the decisions of the local tribunals upon such subjects 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. The law
respecting negotiable instruments may be truly declared in the languages
of Cicero, adopted by Lord MANSFIELD in Luke v. Lyde, 2 Burr, 883,
887, to be in a great measure, not the law of a single country only, but
of the commercial world. Non erit alia lex Romoe, alia Athenis; alia
II. 22 U.S. (9 Wheat.) I (1824).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
nunc, alia posthac; sed et apud omnes gentes, et omni tempore una
2
eademque lex obtinebit.1
If Henry Friendly and Hugo Black really believe that Swift v.
Tyson was wrongly decided, then they should say so and indicate how
it would be in the national interest to subject a man in Maine who
takes a bill in due course as a bona fide holder there, to the screwball
judge-made law of New York. Is not a bill of exchange an instrument
of "Commerce" and does not, not only Gibbons v. Ogden but also
NLRB v. Jones & Laughlin Steel Corp., 3 United States v. Darby','4
and a host of other cases teach us that state laws (or decisions) that
unreasonably restrain commerce are null and void? And that
"Commerce among the states" is primarily of national, not state
concern?
After all, it was Hugo Black more than anyone else who fought for
F.D.R.'s social legislation on the ground that the Commerce clause,
properly interpreted by Marshall in Gibbons v. Ogden, establishes the
right of the Congress to regulate both "inter" and "intra" state
''commerce." Why not the Supreme Court in the absence of
Congressional action? When you reach to the heart of Swift v. Tyson
you see that what the Court was doing was to regulate by one
uniform national law what the Constitution empowers the national
government to do, namely, "Commerce among the several states,"
pursuant to constitutional provisions that give the Court specific
jurisdiction.
To those of us who study it, it becomes clearer and clearer that the
expansion of federal governmental control legislatively should also
be followed by equal judicial control. Erie v. Tompkins is as out of
date as the Nine Old Men that Hugo Black and FDR fought against.
What the Constitution authorizes Congress to do, it authorizes the
Court within the same constitutional areas. There, if the Court
oversteps, the Congress can correct; the other way under our
governmental system it won't work as Congress will never act of its
own volition. Why should it? As Roscoe Pound taught us long ago,
law reform is lawyers' business.
Yesterday, when I went to law school, one half to three quarters of
the constitutional law course was devoted to "interstate commerce."
The great "F.R.P." (Powell) who taught Henry Friendly, spent hours
12. 41 U.S. (16 Pet.) at 19.
13. 301 U.S. 1 (1937).
14. 312 U.S. 100 (1941).
1969]
"'THE" TRUE NATIONAL COMMON LA W
on the commerce clause. Today, any constitutional law professor who
devotes more than a few hours to the commerce clause should be
fired.
When the Supreme Court croaked those chickens in the Schecter
case, 5 and followed with one decision after another upholding the
New Deal legislation of FDR, "interstate commerce" died in
America. Rightly so, because the Constitution gives the Congress the
right to regulate "Commerce among the states" and Gibbons v.
Ogden teaches us that this gives the Federal Government the right to
regulate both "inter" and "intra" state commerce to its heart's
content. "Interstate Commerce" is not in the Constitution. It is a
figment of the imagination of the Taney Court; and the lawyer,
legislator or Judge who talks about it, has a mind in the last
century. 6 It's as bad as his saying that Earl Warren is "Chief Justice
of the Supreme Court" instead of "Chief Justice of the United
States."
Take the facts of Erie. Granted there would be no diversity of
citizenship jurisdiction in a railroad case such as Erie today and suit
in New York would fail for improper venue, still does not the Federal
Government have an interest in uniform rules of liability for railroad
accidents?
The Pennsylvania rule of Erie, contrary fo the weight of authority,
permitted the Pennsylvania Railroad negligently to leave a freight
door of its train ajar and mow down any person, like Tompkins, that
the railroad over a long period had been permitting to use a
longitudinal path along the railroad right of way. To state the rule is
to show how unjust and rotten it is. Why should a railroad be relieved
from liability for ordinary negligence in dealing with people that it
allows to use paths along its right of way?
In a state like Pennsylvania, where the railroads have over the years
been able to obtain legislation in their favor, it is understandable that
Judges of its highest court should establish rules of law equally
favorable.
But why should the rest of us have to submit to Pennsylvania's
unjust railroad laws, whether made by judges or legislators? Isn't this
a basic American problem? Each state has its own racket.
Connecticut and Massachusetts, insurance. New York, banks.
Florida, the aged. Nevada, divorces and gambling. Delaware,
15. A.L.A. Schector Poultry Corp. v. United States, 295 U.S. 495 (1935).
16. See I W. CROSSKEY. POLITICS AND THE CONSTITUTION 229-92 (1954).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
corporate charters. And so on, state by state. But who thinks of the
nation?
Assume Tompkins was a New Yorker walking along the right of
way when the wide open freight car door mows him down. When he
sues in the United States district court, the rule of law applicable
should be one uniform fair just national law because railroads are
"commerce" and "commerce" is a federal question. It is an
unreasonable state restraint and interference with national commerce
for the Supreme Court to allow Pennsylvania to absolve the railroad
from liability for ordinary negligence on these facts and to subject it
to liability only on proof of gross negligence.
Of course, this points up Justice Black's position. Not all the
Alabama rules of law that the federal courts refused to follow for him
could have been "just." As I am sure you know, Hugo Black is a
good "winner," and if the Alabama precedent was in his favor, he'd
expect to win. But we must assume that some of the rules Justice
Black asked the Alabama federal court to follow were as rotten as the
Pennsylvania judge-made rule that gave railroads a license to mow
people down, with immunity from ordinary negligence.
When Professor Vance of Yale taught Sterry Waterman and me
Insurance at the Cornell Law School in the Summer of 1925, he used
to say that there were many more insurance cases favorable to the
companies in federal than in state courts. His explanation was not
only that all federal judges were then Republican but that they were
well paid, didn't pay taxes and played golf with insurance executives.
There is something in this. Federal judges were more aristocratic when
that "nice man," Coolidge was President with Sargent Attorney
General. In any event, we thought that federal court was a more
favorable forum for defendants than plaintiffs.
Arguments such as Justice Black's suffer from the curse of an over
generalized approach. He would have to cite the particular decisions
by chapter and verse to convince me. Moreover, his premise that
evidence rules in federal court must be the same as in a state court is
open to serious question. If we cannot agree on this premise, then we
are in trouble even before we consider the particular Alabama judgemade rule a federal court there refuses to follow. We are at odds upon
the desirability of one uniform rule. In this, Hugo Black agrees with
Brandeis who, alone, opposed the promulgation of the Federal Rules
of Civil Procedure. People forget that Mr. Justice Brandeis was as
conservative as he was.
What Friendly does is to argue that Brandeis placed his decision on
19691
"THE" TRUE NATIONAL COMMON LA W
the constitutional ground and the decision was a holding, not a
dictum.
Passing the point whether it was dictum and, if not, whether the
Solicitor General should have been invited to express the
Government's point of view in view of the defendant's failure to brief
and argue the point, neither Bill Crosskey nor I nor any other
opponent of Erie has ever questioned that Brandeis first put his
holding on the constitutional point. Henry is tilting at a windmill, like
Don Quixote.
Actually, what Henry is saying is that Brandeis is right about the
constitutional point but wrong about everything else. But his
constitutional point is meaningless unless he demonstrates how
whether by Congressional statute or judicial decision, it was
unconstitutional for Story to decide Swift v. Tyson as he did.
As we shall see, Henry Friendly's joining his Court in deciding
airplane accident cases in accordance with law other than that of the
State of the accident is as unconstitutional if not more so than the
just decision Story rendered in Swift v. Tyson.
In truth, Professor Mason, biographer of both Stone and Brandeis
tells us that the language Brandeis uses on this point, is identical to
that Stone insisted be in it for him to join it.
Stone's suggested language was: "if only a question of statutory
construction was involved we would not be prepared to abandon a
doctrine so widely applied throughout nearly a century. But the
unconstitutionality of the course pursued has now been made clear
and compels us to do So.''17 Brandeis's first draft argued that Section
34 of the original Judiciary Act of 1789 was unconstitutional in "that
Congress lacked authority to permit federal courts to ignore State
rules in Diversity cases."'" Unless Brandeis took his language, Stone
threatened to join Mr. Justice Reed and say that he would "leave
Swift v. Tyson undisturbed."' 9 In any event, Brandeis took Stone's
language verbatim."
From this I conclude that the argument that the jurisdiction federal
courts exercised under Swift v. Tyson was unconstitutional was more
Stone's than Brandeis'. Brandeis apparently wanted to declare Section
34 unconstitutional. As Mason tells us 21 "The revision Stone
17. A. MASON, supra note 6, at 479.
18. Id. at 478.
19. Id. at 479
20. Id. at 480.
21. Id. at 479.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
suggested rested on the astonishing premise that the prior decision in
Swift v. Tyson was unconstitutional." No matter. Dictum or holding,
the argument has no merit.
Diversity of citizenship was not made a ground of federal
jurisdiction only to give a citizen of Georgia sued in Massachusetts or
a citizen of that state sued in Georgia a square deal. There is as
much, if not more reason to believe that the constitutional fathers
established the diversity jurisdiction to give our federal courts Choice
of Law jurisdiction with the opportunity for the Supreme Court to
establish one uniform national rule for domestic as well as
international conflicts of law.
Professor Yntema contends this and reminds us that Hamilton in
the Federalist Papers said:
The fourth point rests on this plain proposition, that the peace of the
WHOLE, ought not to be left at the disposal of a PART. The union will
undoubtedly be answerable to foreign powers for the conduct of its
members. And the responsibility for an injury, ought ever to be
accompanied with the faculty of preventing it. As the denial or
perversion of justice by the sentences of courts, is with reason classed
among the just causes of war, it will follow, that the federal judiciary
ought to have cognizance of all causes in which the citizens of other
countries are concerned. This is not less essential to the preservation of
the public faith, than to the security of the public tranquillity ....
The power of determining causes between one state and the citizens of
another, and between the citizens of different states, is perhaps not less
essential to the peace of the union, than that which has been just
examined . . . .Whatever practices may have a sendency to disturb the
harmony of the states, are proper objects of federal superintendence and
control.
It may be esteemed the basis of the union, that "the citizens of each
state shall be entitled to all the privileges and immunities of citizens of
the several states." And if it be a just principle, that every government
ought to possess the means of executing its own provisions, by its own
authority, it will follow, that in order to the inviolable maintenance of
that equality of privileges and immunities, to which the citizens of the
union will be entitled, the national judiciary ought to preside in all cases,
in which one state or its citizens are opposed to anothef' state or its
citizens. To secure the full effect of so fundamental a provision against
all evasion and subterfuge, it is necessary that its construction should be
committed to that tribunal, which, having no local attachments, will be
likely to be impartial, between the different states and their citizens, and
which, owing its official existence to the union, will never be likely to feel
any bias inauspicious to the principles on which it is founded 2
22. A. HAMILTON,
THE FEDERALIST,
No. LXXX 588-90 (J. Hamilton ed. 1875).
1969]
"THE" TRUE NATIONAL COMMON LA W
My friend "Bill" Crosskey in a brillant analysis of the full faith
and credit clause, I feel established this beyond a peradventure. His
conclusion is:
In general, it may be said that, whereas a single uniform system of
nation-wide rules of the interstate conflict of laws is what was intended;
what we actually have today is forty-eight different systems, varying
unimportantly, but very troublesomely, from State to State, with the
Supreme Court's system of largely unpredictable interferences, in the
name, sometimes, of 'full Faith and Credit' and, sometimes of 'due
process of law', superimposed on top of these. And the result, as might
be expected, is a vast chaos of complexity and uncertainty, instead of the
simple nation-wide system for which the Constitution provided and still
providesP
This is why the facts of Swift v. Tyson, are so important; they
emphasize that what we have there is really not so much Diversity or
Federal Question as a Choice of Law jurisdiction.
Let's view the Bill of Exchange as the distinguished lawyers who
argued that case in 1842 did, namely Richard Henry Dana24 (of 5Two
Years Before The Mast) for Tyson, and William Pitt Fessenden (of
23. I W. CROSSKEY, supra note 16, at 555; see also Keeffe, Piercing Pearson, 29 J. AIR L. &
CoMi. 95, 101-04 (Spring 1963).
24. Richard Henry Dana was quite a fellow. Born in Cambridge, Mass. on August 1, 1815,
the son of Richard Henry Dana and Ruth Charlotte Smith he was "one of the most active and
influential lawyers of his day." Entering Harvard College in 1831, he left two years later
"because of eye trouble resulting from measles" and sailed round Cape Horn to California "'as
a common sailor on the big Pilgrim, returning to Boston two years later on "the ship, Alert."
Returning to Harvard in 1836 he was graduated in June 1837 "at the head of his class." In
1840 he was admitted to the bar and that year he published Two Years Before the Mast,
"written from notes made during his voyage." In 1841, he also published The Seanlan's Friend
and it "became at once a standard work on maritime law." Although not an Abolitionist, he
defended "Shadrach" in Boston in 1851 and "with William M. Evarts he was counsel for the
United States in the proceedings against Jefferson Davis for treason." At 67 he died in Rome,
Italy and is buried in the Protestant Cemetery there with Shelley and Keats. He is a relative of
Charles Dana of the New York Sun (1819-1897). 5 AMERICAN
BIOGRAPHICAL DICT.
25. William Pitt Fessenden (1806-1869) was the son of Samuel Fessenden but born out of
wedlock at Boscawen, N.H., he lived with his grandparents at Fryeburg, Maine until his father
married Ruth Greene in 1813 and "he became a member of the new household." A graduate of
Bowdoin in 1823, his diploma "was withheld for a year on the ground that he had been
.repeatedly guilty of profane swearing' and had 'indicated a disorganizing spirit' and that 'his
general character and the bad influence of his example' called for punishment." But in 1858,
Bowdoin gave him an honorary degree of Doctor of Laws and for the last 26 years of his life, he
was a member of its governing board. In 1827, he was admitted to the bar and maintained a
residence at Portland, Maine almost all his life, practicing law there with William Willis from
1835 to 1855 when he became United States Senator from Maine. He was engaged to marry
Ellen, sister of Henry Wadsworth Longfellow but she died before they could marry and in 1832
he married Ellen Maria Deering of Portland. Daniel Webster had been his Godfather on his
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
Maine who voted against the impeachment of Andrew Johnson) for
Swift. And recall what the late John J. Parker was so fond of saying,
namely, that when a contract is made between two citizens of different
states, there is just as much reason to apply the law of the one state
as the other.
George W. Tyson, the New Yorker, was buying land from slick
Maine Yankees, Nathaniel Norton and Jarius S. Keith. Instead of
land, he probably got water. Norton and Keith, the sellers, draw in
Maine on Tyson in New York. Tyson accepts in New York payable
there. The bill was drawn to the order of Nathaniel Norton and by
him endorsed to John Swift. Tyson is to pay or not pay depending on
how the judge views the negotiable character of the bill. Can Swift be
a bona fide holder when, instead of paying Norton and Keith cash, he
takes Tyson's acceptance in due course without any knowledge of the
bad character of the land in payment of a debt Norton and Keith
owed him as a result of Swift's having to pay their protested note?
Fessenden, whose argument Story accepted, answers this way:
In cases in which the courts of the United States have jurisdiction, by
the constitution and laws of the United States, the common mercantile law
of the respective states applying to and goveining those cases, is as much
submitted to the actual consciences and judgments of the minds of the
birth in 1806 and from 1837 to 1852 was closely associated with him; in 1852 they broke, when
Fessenden opposed Webster's nomination for President at the Whig party's national convention.
As early as 1835, Fessenden had "'established a reputation an one of the ablest lawyers of the
State," considered "by many the equal of his father, then the leader of the Maine bar." After
membership in the Maine legislature and a term in Congress, in 1854 "an anti-slavery
combination in the legislature elected him to the United States Senate." For "the next fifteen
years he was one of the dominant figures in national affairs." In 1857 his wife died and his own
health was impaired, "one of the numerous victims of the mysterious epidemic said to have
originated at the National Hotel." Thereafter, he was "morose and unsociable in his habits and
given to displays of irritability which would have been ruinous to anyone but a man of
commanding ability and high character." But he was a different person in Maine and regarded
in Congress "as one of the greatest debaters," in fact "one of the greatest intellectual forces in
government."
Lincoln appointed him Secretary of the Treasury succeeding Chase in 1864.
Reelected in 1865 for a third term as Senator from Maine, Fessenden resigned on March 3,
1865 as Secretary of the Treasury. By this time, Fessenden was as much an Abolitionist as Thad
Stevens but he had a deep sense of justice and propriety. This was embarrassing when he was
called upon to vote on the impeachment of Andrew Johnson. Fessenden was Majority Leader of
the Senate. Taking the position that if Andrew Johnson "was impeached for general cussedness,
there would be no difficulty with the case," he pointed out to his friends that as a Senator he
had sworn "to do impartial justice" and their opinions "ought not to have a feather's weight
with me in coming to a conclusion." Fessenden voted against the impeachment of Andrew
Johnson. He lived long enough to see the tide of public opinion turn in his favor but for a while
lhe
was royally denounced. He died before it was time for Maine to reelect him. 6 AIERICAN
BIOGRAPHICAL DicT. 348-50.
1969]
"THE" TRUE NATIONAL COMMON LA W
judges who constitute those courts, to be considered and declared,
without respect to the decision-of any state court, as binding authority,
as the same law, in cases where the United States courts have not
jurisdiction, is to the best judgment of the state courts, without respect •
to the decision of any court of the United States, as binding authority.
Congress, and congress alone, has power to regulate commerce between
the states. But it will be impossible for congress to regulate commerce
between the states, if it be left to state courts to declare authoritatively,
in the absence of any statute upon the point, the force, and meaning of,
and the right of parties under, that most important instrument of such
commerce-the bill of exchange, when drawn and held in and by a
citizen of one state, and accepted and payable in and by a citizen of
another state.6
In deciding the case, Mr. Justice Story concludes he can make the
Choice of Law, that he is not bound to the judge-made law of either
Maine or New York but has a right under the Constitution of the
United States and the Rules of Decision Act, to decide what law is
applicable, New York, Maine or Federal Common Law.
Let's look at the Constitution to see whether Story was right.
The judicial Power of the United States shall be invested in one
Supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. (Article I II, Section 1).
The judicial Power shall extend to all cases, in Law and Equity,
arising under this Constitution, the Laws of the United States and
Treaties made or which shall be made, under their Authority . . . to all
Cases of admiralty . . . to Controversies between citizens of different
States . . . and between a State, or ihe Citizens thereof, and foreign
States, Citizens or Subjects. (Article III, Section 2).!7
Full Faith and Credit shall be given in each State to the public Acts,
Records and judicial Proceedings of every other State. And the Congress
may by general laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved and the effect thereof. (Article IV,
Section D).
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States shall be the supreme law
of the land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the contrary
notwithstanding. (Article VI, Paragraph two).
How under these constitutional provisions the jurisdiction which the
26. 41 U.S. (16 Pet.) at 9.
27. Emphasis added.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
federal courts exercised under Swift v. Tyson could be
unconstitutional defies imagination.
The constitutional provisions, above-quoted, are so broad that there
is little reason to doubt that tomorrow either the Congress or the
Court could apply national law in every field, just as today it
regulates intra state commerce.
Stone apparently could not bring himself to join Brandeis in saying
that Section 34 was unconstitutional and that Congress lacked the
power to pass the statute. Actually the decision he made was worse,
that the court without the blessing of any statute could not apply
Federal Common Law. Why should Stone's putting the matter this
way change the question of constitutional power? Either the Congress
and the Court under the Constitution have or have not the power to
decide diversity cases by use of Federal Common Law.
A reading of these constitutional provisions as they are written,
forces you to conclude that the courts of the United States are given
judicial power to decide "Cases" which arise under the
"Constitution, the Laws of the United States, and treaties made,"
"Cases of admiralty and maritime Jurisdiction," "Controversies...
between Citizens of different States" and between "Citizens" of a
State and "Citizens or Subjects" of foreign "States."
There certainly is no suggestion in Article III that this broad grant
of judicial power is to be made subservient to the law of a state, be it
legislative-made or judge-made.
Since the great contribution of Mr. Justice Black has been to ask
the Court time and again to read the Constitution as written, it is
difficult to see how he, in the face of these clear mandates, can accept
the reactionary doctrine of Erie v. Tompkins which chains federal
courts to state law, right or wrong and makes federal judges
automatons in cases where the Constitution specifically vests them
with judicial power.
In First National Bank v. United Airlines Inc.,2 Mr. Justice Black
read Article III as written and said that the bank could sue United in
Chicago for a crash in Utah even though Illinois by statute forbade
an Illinois citizen to sue in the courts of Illinois for a wrongful death
occurring in another state whose courts were open to them. Why
should he not also say that when the controversy is between citizens of
different states and may be said to involve the law of both States or
28. 342 U.S. 396 (1952).
19691
"THE" TRUE NATIONAL COMMON LAW
Federal Common Law, that the federal court sitting in diversity
should not have judicial power to decide it as it chooses?
Henry Friendly in his Cardozo lecture is wrong when he attempts
to justify Brandeis' decision in Erie v. Tompkins on the constitutional
ground. In the first place, counsel for Erie did not ask that Swift v.
Tyson be overruled nor did that counsel, the distinguished and able
Theodore Kiendl, argue that the doctrine of Swift v. Tyson was
unconstitutional.
As a matter of fact, it seems to me were Story dealing with a New
York statute instead of a ruling by Chancellor Kent in Swift v. Tyson
and Brandeis with a Pennsylvania statute instead of a judge-made
rule, the Supreme Court sitting either in diversity or federal question
or in Choice of Law, should strike down such unjust statutes as Story
did Kent's mistake in Bay v. Coddington9 and as the Second Circuit
did Pennsylvania's rotten rule limiting liability of railroads on the
facts of Erie to gross negligence.
Henry Friendly does not argue that Erie is only a rule in diversity;
he argues it is equally applicable in federal question cases and from
his opinion in Pearson v. Northeast Air Lines, Inc. 31 I infer he
believes it equally applicable in Choice of Law jurisdiction though I
must confess his position on Choice of Law is so confused I cannot be
sure whether he favors or opposes Erie. More about that later.
Perhaps, the one who first blew to smithereens Brandeis's attitude
towards Federal Common Law was the late Mr. Justice Robert
Jackson in his concurring opinion in D'Oench, Duhme & Co. v.
Federal Deposit Insurance Corporation.' There you will recall, the
failed bank took the promissory note on an agreement not to collect it,
and the contention was that the FDIC could not under Missouri law
be a bona fide holder in due course and collect it because under
Klaxon Co. v. Stentor Elec. Mfg. Co., 32 Missouri law was binding on
the United States District Court for Missouri. The Court in an
opinion by Mr. Justice Douglas held that Klaxon did not apply
because this was a federal question case, not a diversity one. In
concurring Mr. Justice Jackson said this:
I think we should attempt a more explicit answer to the question
whether Federal or state law governs our decision in this sort of case
29.
30.
31.
32.
5 Johns Ch. 54 (1821), affd, 20 Johns. Ch. 637 (N.Y. 1822).
309 F.2d 553 (2d Cir. 1962).
315 U.S. 447 (1942).
313 U.S. 487 (1941).
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than is found either in the opinion of the Court or in the concurring
opinion of Mr. Justice Frankfurter. That question, as old as the Federal
judiciary, is met inescapably at the threshold of this. case. It is the one
which moved us to grant certiorari, and we could not resort to the rule
announced without at least a tacit answer to it. The petitioner asserts
that the decisions in Erie R. Co. v. Tompkins and Klaxon Co. v.
Stentor Electric Mfg. Co. govern this case. If they do, we would not be
free to disregard the law of Missouri and Illinois and to apply a doctrine
of estoppel actually-but not avowedly-drawn from common-law
3
sources to effectuate the policy we think implicit in Federal Statutes
Then, recognizing that the FDIC was in a different category from an
ordinary litigant and that it was asserting rights under federal law,
Robert Jackson asked the $64 question whether in deciding
government rights the Court could use Federal Common Law. His
answer goes this way:
Although by congressional command this case is to be deemed one
arising under the laws of the United States, no federal statute purports
to define the Corporation's rights as a holder of the note in suit or the
liability of the maker thereof. There arises, therefore, the question
whether in deciding the case we are bound to apply the law of some
particular state or whether, to put it bluntly, we may make our own law
from materials found in common-law sources.
This issue has a long historical background of legal and political
controversy as to the place of the common law in Federal jurisprudence.
As the matter now stands, it seems settled that the Federal courts may
not resort to the common law to punish crimes not made punishable by
Act of Congress; and that, apart from special statutory or constitutional
provision, they are not bound in other fields by English precedents
existing at any particular date. The Federal courts have no general
common law, as in a sense. they have no general or comprehensive
jurisprudence of any kind, because many subjects of private law which
bulk large in the traditional common law are ordinarily within the
province of the states and not of the Federal government. But this is not
to say that wherever we have occasion to decide a Federal question
which cannot be answered from Federal statutes alone we may not resort
to all of the source materials of the common law or that when we have
fashioned an answer it does not become a part of the Federal nonstatutory common law.3
Coming to Brandeis's unfortunate statement that there is no Federal
Common Law, Bob Jackson says:
33. 315 U.S. at 465 (citations omitted).
34. Id. at 468-69.
1969]
"THE" TRUE NATIONAL COMMON LAW
I do not understand Justice Brandeis' statement in Erie R. Co. v.
Tompkins, that "There is no Federal general common law," to deny
that the common law may in proper cases be an aid to or the basis of
decision of Federal questions. In its context it means to me only that
Federal courts may not apply their own notions of the common law at
variance with applicable state decisions except "where the Constitution,
treaties, or statutes of the United States so require or provide." Indeed,
in a case decided on the same day as Erie R. Co. v. Tompkins, Justice
Brandeis said that "whether the water of an interstate stream must be
apportioned between the two States is a question of "Federal common
law" upon which neither the statutes nor the decisions of either State
can be conclusive." Hinderlider v. La Plata River & C. Creek Ditch Co.
Were we bereft of the common law, our Federal system would bd
impotent. This follows from the recognized futility of attempting allcomplete statutory codes, and is apparent from the terms of the
Constitution itself. 5
Just a few moments thought, convinces anyone that, if the federal
district court acted unconstitutionally in Swift v. Tyson in not using
the then unjust rule of Bay v. Coddington when sitting in diversity
jurisdiction under Article III, it was equally unconstitutional for the
District Court of Missouri in D'Oench not to apply the unjust
Missouri law sitting in federal question jurisdiction under Article III.
And logically, the same should be true in admiralty.
What the Court is doing with this so-called federal question,
exception is to reverse Erie and Klaxon for the benefit of the Federal
Government. In so doing, the Court discriminates against citizens not
native to the forum-state.
I confess I once tried to think of Swift v. Tyson as a rule in
diversity but I have long since abandoned that position. Whatever its
original intention, diversity quickly becomes Choice of Law and no
single state should have the right to make that choice for itself. The
one to do this, as Crosskey so eloquently argues, is the intended
juridical head of this nation, the Supreme Court of the United States.
It was out of character for Brandeis to decide Erie on a
constitutional point not argued. Why should he? Did he not spend a
life time arguing that the Court should never, no never, decide a
constitutional point until the pistol is at its head?3" And here in Erie
we see him reaching out to decide the case on a constitutional point
35. Id. at 469-70 (citations omitted).
36. See Ashwander v. TVA, 297 U.S. 288 (1936) and Keeffe, Weary Erie, 34
494, 497 (1949).
CORNELL
L.Q.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
never briefed or argued. It would take more than Emerson to alibi this
inconsistency.
Nor can Henry Friendly deny that the inclusion of this point as a
ground for decision demanded that the case be put down for
reargument as Justices Butler and McReynolds demanded and that
notice of the constitutional point be drawn to the attention of the
Solicitor General. It is no excuse to say as Henry does that on the
oral argument, questions were raised as to the wisdom and application
of Swift v. Tyson.
In this respect, as Professor Crosskey says,
[S]ince the new rule of decision adopted by the Court was one totally
irreconcilable with its own Constitutional position as the nation's general
juridical head, the decision stands revealed, both in its manner and
substance, as one of the most grossly unconstitutional govermental acts
37
in the nation's entire history
The only thing unconstitutional was Erie itself, not only the
aribtrary manner in which the decision was made but its overnight
effect on property rights of countless people, not to mention its more
recent effects, in automobile and airplane cases, namely, flagrant
violations of the American Holy Trinity-Privileges and Immunities,
Equal Protection and Due Process of Law. Allowing one man to
recover and denying recovery to another identically situated. As Bill
Crosskey remarked in r954:
How many millions of dollars, in money and other property, are now
in hands other than they would have been, had the Court's unwarranted
decision not been made, it is utterly impossible to say. But is is perfectly
safe to say that the total must be enormous38
There were, of course, other grounds for Mr. Justice Brandeis's
decision in Erie v. Tompkins but Henry Friendly so far as I am
aware, has never sought to defend them though, Mr. Justice Black
made the mistake of joining Brandeis's Erie opinion.
At the date of Story's decision (1842), as at the date of
(1938), the 34th Section of the original Judiciary Act of
this way:
The laws of the several States except where the Constitution
or Statutes of the United States shall otherwise provide,
37. 2 W. CROSSKEY, supra note 16, at 916.
38. Id.
Brandeis's
1789 read
Treaties,
shall be
1969]
"THE" TRUE NATIONAL COMMON LAW
regarded as rules of decision in trials at common law in the courts of the
United States in cases where they apply 9
In 1909 Professor, John Chipman Gray of Harvard Law School
attacked Story's decision in Swift v. Tyson, arguing there was no
such thing as a Federal Common Law and that federal courts sitting
in diversity must follow the state decisional law, right or wrong. Gray,
whom Professor Crosskey describes "as an expert on certain narrow
and esoteric branches of property law," had his book cited by Mr.
Justice Holmes in January, 1910 in his dissent in Kuhn v. Fairmount
Coal Co.4" which Justices White and McKenna joined. In that case
Harlan (whom Bill Crosskey calls "the ablest member of the Court of
the time"4 wrote the majority opinion and followed Swift v. Tyson.
Holmes in his dissent referred to Gray's book as one by "a recent
accomplished and able writer." Never under estimate these Harvard
Judges; they either eat up one another (as they did Story) or build
each othier up (as Holmes undeservedly did Gray) and Brandeis both,
plus Warren and Frankfurter.
By this dissent Crosskey rightly says that Mr. Justice Holmes gave
a dignity and importance to Gray's views that they did not deserve,
and again, in Black & White Taxicab & Transfer Co. v. Brown &
Yellow Taxicab & Transfer Co. 42 Holmes undeservedly built up
another Harvard Law Professor, by referring to the research of
Charles Warren with respect to an hitherto undiscovered draft of
Section 34 of the Judiciary Act of 1789. As Crosskey puts it, Holmes
said that "an examination of [this draft] showed that [the Court's
established theory in this matter] probably was wrong if anyone [was]
4' 3
interested to inquire what the framers of [Section 34 had] meant.
In 1923 Professor Charles Warren of Harvard had published an
article entitled: New Light on the History of the Federal Judiciary
Act of 178911 and announced the unexpected discovery of an hitherto
unknown draft of Section 34 of Oliver Ellsworth which read as
follows:
And be if further enacted, that the Statute Law of the several States in
force ]br the time being and their unwritten or common law now in use,
whether by adoption from the common law of England, the ancient
39.
40.
41.
42.
43.
44.
Federal Judiciary Act of 1789, ch. 20, sec. 34, I Stat. 92, 28 U.S.C. § 1652 (1964).
215 U.S. 349, 370 (1910).
2 W. CROSSKEY, supra note 16, at 906.
276 U.S. 518, 532 (1928).
I W. CROSSKEY, supra note 16, at 908.
37 HARV. L. REv. 49 (1923).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
statutes of the same or otherwise, except where the Constitution, Treaties
or Statutes of the United States shall otherwise requireor provide, shall be
regarded as rules of decision in the trials at common law in the courts of
the United States in cases where they apply.!5
As Crosskey so colorfully puts it, Warren saw in this draft "what
he had apparently already believed anyway" 46 namely that Story's
decision in Swift v. Tyson was wrong. In a brillant analysis, "Bill"
Crosskey establishes that Charles Warren did not know how to read
the draft. You will recall that Joseph Story in Swift v. Tyson had
interpreted the word "laws" in Section 34 as applying only to state
statutes, not state decisions. In this, Crosskey concedes Story was in
error and that Professor Charles Warren was right when he argues
that the draft, including as it does both statutory and decisional law,
indicates that the use of the word "laws" in the final draft by
Ellsworth was stylistic only and intended to include both statutory
and decisional "laws."
The draft itself, however, does not establish that Ellsworth intended
to chain federal courts to state law right or wrong. Crosskey reads it
this way:
The feature of the long-lost draft that will probably at once impress
every reader of this book is that it spelled out, as "rules of decision" for
the cases it covered, exactly what, it has here been suggested, would have
been the appropriate mode of decision anyway, under the Constitution
and the standing national law-that is, the Common Law-at the time
the Constitution was adopted. For "now," in the original draft,
manifestly meant what the same word meant in the "process" act at the
same time adopted; that is, it meant "in 1789." And "for the time
being" meant "the time being when the statute law of a state was to be
regarded as a rule of decision"-or, in other words, "at the time of
suit." So, state-court innovations in the Common Law, if made after
1789, were not to be "regarded as rules of decision" by the national
courts, as the section was originally drafted; but subject to all the
qualifications that the section still contains, such innovations in the
Common Law, if made before that date, and all state legislation,
whether existing or future, as of that time, were to be so regarded. It is
noteworthy, too, that even the reservation, or proviso, about the law of
nations, which was explained herein in chapter xxi, was covered in the
original draft-as, indeed, it was in the final version-by the words, "in
cases where they apply." For these words meant "in cases where they
[properly] apply"; and considering what it was that was being talked
45. Id. at 87 (emphasis added).
46. 2 W. CROSSKEY, supra note 16, at 866.
1969]
"THE" TRUE NATIONAL COMMON LA W
about, there surely can be no reasonable doubt that it was the law of
nations-chiefly the general commercial law and what we know as "the
conflict of laws"-which was to be the test of "propriety" in the
"application" of the state laws in the cases the section covered. So, it
would seem that there is, for the ideas here presented, a considerable
degree of further corroboration, in the way section 34, at first, was
drawn. And our problem is to decide whether the discoverer of the
original draft was right in concluding that the framers of the Judiciary
Act changed their minds aqd, in effect, added, in the final draft of
Section 34, a direction to the national courts, including the Supreme
Court, to follow state judicial precedents upon points of state law and
Common Law, even though these precedents came into existence after
1789.!
7
Greatly to his credit Henry Friendly in his Cardozo Lecture
concedes that Crosskey's reading is correct:
One answer, although not one that Brandeis could have given, was
that the research of the "competent scholar," Mr. Charles Warren, had
not "established" that the established construction of § 34 was wrong,
nor even. as said by Mr. Justice Holmes, more cautious in legal history,
that it "probably was wrong." Indeed, Professor Crosskey is persuasive
that the unearthing of Ellsworth's original draft of § 34 tended to
confirm Story's interpretation more than to refute it. Warren's discovery
was that whereas the final version spoke of "The laws of the several
States," the draft had read "the Statute law of the several States in
force for the time being and their unwritten and common law now in
use, whether by adoption from the .common law of England, the ancient
statutes of the same, or otherwise .
. .
."
Warren argued that the
abbreviation was only stylistic. Readily accepting this, Crosskey retorts
that Warren's assumption that the draft embraced subsequent common
law decisions of the state courts flies in the face of the contrast between
"their unwritten and common law now in use" and "the Statute law of
the several States in force for the time being." Warren's conclusion
could thus be reached only by an argument, contrary to the one he
made, that the change from the original draft was not simply stylistic
but had a substantive purpose as well. On this supposition, the original
wording would have been redundant since everyone understood decisional
principles to be "laws," but the restrictive words would have been
deliberately stricken so that the text should include future decisions as
well as past ones. Apparently anticipating the possibility of such a shift,
Crosskey, who agrees that reference to "the laws of the several States"
sufficed to include future decisions of state courts, contends that
47. Id. at 867.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
nevertheless it did not require federal courts to heed them. This is because,
on his view of the intended supremacy of the Supreme Court as to all
kinds of law, the Constitution does "otherwise require or provide"; the
words "now in use" thus were unnecessary. Interesting as all this may
be, the debate only demonstrates on what quicksand any attempt to
interpret so venerable a statute on the basis of an unexplained change
from an earlier draft must rest4
Unfortunately, having said this, Henry makes the mistake of also
saying this:
Too quickly accepting Warren's thesis, Brandeis properly declined to
make it the ground of decision, since "if only a question of statutory
construction were involved, we should not be prepared to abandon a
doctrine so widely applied throughout nearly a century." On an issue of
construction alone, it was not decisive in 1938 whether or not an
historian had discovered that in 1789 Ellsworth had meant, or even that
the first Congress had meant, something different from what Story, in
1842, had ruled they meant. If every Congress's reenactment of a
statute or failure to alter it could fairly be taken as approving a prior
judicial interpretation, the unchanged existence of § 34 for a century
after Story's construction was such a case. The doctrine of Swii v.
Tyson was notorious, it had become ever more pervasive at least through
1928, it had been under attack almost from the beginning, and bills to
alter it had been introduced without result. Herd was truly an instance
where a decision had become "as much a part of the wording of the
statute as if it has been written in express terms." For the Court to have
abrogated a construction so long accepted by Congress, on the basis of
an "archeological discovery" or any other basis going only to statutory
interpretation, would have been a naked exercise of power-far more
fairly subject to the criticism it would deservedly have attracted than the
constitutional ground on which decision was placed. 9
This so-called constitutional point, however expressed, is the second
ground of the Brandeis judgment. In discussing it, Henry is in a bad
spot because he concedes that Crosskey reads the Ellsworth draft
right and Brandeis reads it wrong. Moreover, the language he here
attributes to Brandeis is Stone's. I grant Stone was mixed-up in
thinking there is a difference between saying Section 34 is
unconstitutional and that the judicial power exercised under Swift v.
Tyson is or is not. But even Stone cannot buy Brandeis's first draft
argument that the Congress lacked power to pass 34 giving the Court
48. Friendly, supra note I, at 68-69.
49. Id. at 69-70.
1969]
"THE" TRUE NATIONAL COMMON LAW
the power it exercised for over 100 years under Swift v. Tyson. The
two of them, then ducked using Warren's unreliable and untested
research and said merely that Swift v. Tyson was unconstitutional.
Right or wrong, the Supreme Court in Erie by "a naked exercise of
power" unconstitutionally reversed Swift v. Tyson.
As we know, Mr. Justice Butler in his dissent in Erie asked that the
case be put down for reargument so that the validity of the research
of Charles Warren could be briefed and orally argued. Friendly's
effort, therefore, to excuse Brandeis's limited use of Warren is not'
very convincing.
But no matter how Henry Friendly or Hugo Black seek to defend
Erie, neither can excuse the violation by the Court of civil liberty in
refusing Justice Butler's request in which he was joined by Mr.
Justice McReynolds. To this very minute the Court has not heard this
point argued. Instead of denying certiorari across the board in every
diversity case, the court owes it to itself and the country to ask that
the validity not only of Warren's research but also for Erie v.
Thompkins be briefed and argued.
More especially is this true when Henry Friendly, himself, indicates
that he thinks Crosskey's reading of Oliver Ellsworth's draft is the
correct one -which knocks out completely the second ground for the
Brandeis opinion.
The Justice's third reason for his decision is that experience under
Erie v. Tompkins was bad and there were between 1842 and 1938
some 1000 cases that caused Federal Courts to inquire whether the
case presented a point of general or Federal common law. Of course,
for a while cases as to the meaning of Erie seemed to run at 1000 per
month and Sheppard's citations of Erie make a book. In making this
point, Justice Brandeis relies on the law review article of the late Felix
Frankfurter, written when the Justice was a Harvard Law School
professor5 °
It was this article by Felix Frankfurter more than anything else
that caused me to interest myself in the soundness of Erie. The
presentation Brandeis makes in Erie is so superficially correct that I
am sure I might have fallen for it just as Hugo Black did, presented
as it was with the apostolic blessings of Gray, Warren, Holmes and
Frankfurter.
Interestingly enough Brandeis's law secretary of that year, W.
50. Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13
CORNELL L.Q. 499 (1928).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
Graham Claytor, now President of the Southern Railway, did not.
The previous year he had clerked for Learned Hand in the Second
Circuit and he knew of Erie v. Tompkins there. His memo on the case
to Justice Brandeis was to ask the Justice to affirm the Second
Circuit. Instead of relying on his law clerk, Brandeis apparently made
the mistake of relying on Gray, Holmes, Warren and Frankfurter
who turned out to be weak reeds, indeed.
It was the investigation that John Gilhooley made for me of the
cases cited by Brandeis in his opinion and Frankfurter more than
anything else that convinced me that the Court had fallen into
monumental error in Erie. Gilhooley's research establishes what
Professor Yntema of Michigan Law School had discovered earlier,
namely that the cases cited by both Brandeis and Frankfurter did not
support what they cited them for. In fact, they establish the contrary.
With few exceptions all the cases either Frankfurter or Brandeis
could muster to cite, when tested, were found to be justly decided and
to have achieved a maximum degree of national uniformity.
Sometimes a state court would at first be petulant that the Supreme
Court had refused to follow it but eventually it would see the light,
enter the church, confess its error and follow the Supreme Court's
Federal Common Law.
There is not a line in Henry Friendly's Cardozo lecture to question
the soundness of either Yntema's or Gilhooley's research.
Gilhooley's stands as written in his Appendix to Weary Erie.5 No
one to date has been able to contradict the conclusions we drew from
Gilhooley's research. I state them again as we did in Weary Erie:
Professor Frankfurter concluded that "Swifi v. Tyson did not
promote uniformity . . . Evidence is wanting that state courts yield their
own law.' This bold categorical negative is buttressed by evidence
fragmentary and misleading. We are led to an entirely different
52
conclusion.
Of course, in fairness to Brandeis he contemplated only that a federal
court would be bound to the decision of a state's highest, never itg
lowest court. It was his successors who pressed Erie to a reductio
absurdam.
In Fidelity Union Trust Co. v. Field,5 3 the court chained the federal
51. Keeffe, supra note 36, at 527-31.
52. Id. at 504.
53. 311 U.S. 169 (1940). Professors Yntema and Jaffin in 79 U. of P. L. Rev. 869 point out
at p. 882 that "Chancellor Kent who gave the opinion in Bay v. Coddingion . . . while stating
19691
"THE" TRUE NATIONAL COMMON LAW
district court in New Jersey to the decision of New Jersey's Newark
Chancery Court even though another Chancellor had made a contrary
ruling and even as "Bill" Crosskey establishes the other Chancellor
was right.
In Field, Edith Peck of Newark was dying and she called her
banker to her bedside and asked how without making a new will or
codicil, she could leave $4,000. to her friend, Ethel Field of New
York. The banker was advised by savings bank officials that under
New Jersey's new statute she could do this by means of a Totten trust
and under the new statute this was easily accomplished by putting the
savings account into the name of "Edith Peck in trust for Ethel
Field." When Mrs. Peck died, the bank was unable to carry out her
wishes because two Judges of the Court of Chancery of New Jersey
who did not like the new statute held it was "ineffective to change the
law." 54 The district court followed their view, the third circuit reversed
but the Supreme Court of the United States on December 4, 1940
affirmed the district court in Fidelity Union. Before the Term expired,
5
in fact, on April 1, 1941, the New Jersey statute in Hickey v. KahP
came before another Vice-Chancellor and was read to uphold Totten
trusts. On rehearing, Miss Field was again denied her gift.56 Erie was
pressed to hold the district court to the Newark Chancery Court's
decision even though in conflict with another.
Again in West v. A. T. & T.57 the Supreme Court held that the
district court was bound to follow the ruling of the Eighth District Court
of Appeals of Ohio which has jurisdiction only over Cuyahoga county
in which Cleveland is situated. There are 88 counties in Ohio so that a
decision by the Eighth District Court of Appeals binds only Cuyahoga
Judges. The courts in the other 87 counties can decide as they please.
It was indefensible to chain a federal court to Cuyahoga law.
In Guaranty Trust Co. v. York,58 the Court applied the Erie
doctrine in federal equity despite the express wording of Section 34
that limits the application of state "laws" to "trials at common
law." 9 It was in York also that Felix made Erie, presumably
the law in the text of his Commentaries, vol. 3, p. 81 in accordance with that opinion has
appended a note, in which he said he was inclined to concur in the decision of Swvlt v. Tyson as
the plainer and better doctrine."
54. Thatcher v. Trenton Trust Co., 119 N.J. Eq. 408, 182 A. 912 (1936); Travers v. Reid, 119
N.J. Eq. 416, 182 A. 908 (1936).
55. 129 N.J. Eq. 233, 19 A.2d 33 (1941).
56. 311 U.S. 730, rehearinggranted,313 U.S. 550, rehearingdenied, 314 U.S. 709 (1941).
57. 311 U.S. 223 (1940).
58. 326 U.S. 99 (1945).
59. 2 W. CROSSKEY, supra note 16, at 877.
THE AMERICAN UNIVERSITY LA W REVIEW
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applicable to state substantive law only, equally applicable to state
procedural law (New York's statute of limitations) when the issue
would "significantly affect the result of the litigation," whatever that
means.
From York, Frankfurter went to Angel v. Bullington,'" where
plaintiff, a resident of Virginia who had foreclosed a mortgage on
property in Virginia, sought to sue on his Virginia deficiency
judgment in the North Carolina state courts. They threw him out
because North Carolina has a statute that prohibits deficiency
judgments. Without appealing the ruling of the Supreme Court of
North Carolina to the Supreme Court of the United States, the
plaintiff began a new action in a United States district court in North
Carolina which took jurigdiction. In reversing, Mr. Justice
Frankfurter declared that Erie "drastically limited the power of
federal district courts to entertain suits in diversity cases that could
not be brought in the respective State courts or were barred by
defenses controlling in State courts."
Then there followed the application of Erie in Cohen v. Beneficial
Loan Corp.6" where, despite Rule 23 of the Federal Rules of Civil
Procedure, the Supreme Court refused to entertain a stockholder's
suit unless the plaintiff stockholder owned five per cent of the stock
or, if the value of his stock did not exceed $50,000 unless he posted a
bond for expenses including attorneys' fees; Ragan v. Merchants
Transler & Warehouse Co.12 where once again in a personal injury
action in Kansas, the Court subjected the plaintiff to the statute of
limitations of Kansas-which does not toll the statute until
the defendant is personally served and this was done despite the fact
that the plaintiff began the action in time under the Federal Rules of
Civil Procedure b filing in the office of the Clerk of the United
States district court; and Woods v. Interstate Realty Co.,1: where Erie
was used to prevent a corporation from suing in a United States
district court merely because under a statute of Mississippi it was
forbidden to sue in that state as a foreign corporation without first
being licensed to do business there.
It was while these three cases were pending in the Supreme Court of
the United States that those three good fellows, Bailey, Day and
60.
61.
62.
63.
330
337
337
337
U.S.
U.S.
U.S.
U.S.
183
541
530
535
(1947).
(1949).
(1949).
(1949).
1969]
"THE" TRUE NATIONAL COMMON LA W
Gilhooley and I wrote Weary Erie. Only Wiley Rutledge dissented
from all three decisions.
Since 1949 there has been an occasional ray of sunshine but over all
there hands a black smog, so impenetrable that no experienced
Supreme Court lawyer today will file a petition for certiorari in a
Diversity case without cash in advance.
Again, because he is so able and such a fine person, Henry Friendly
does not seek to defend this sordid line of decisions.
As he says, the abominable decision in Field, was "the nadir" and
that it was "properly excoriated" by Corbin,64 and, of course, by Bill
Crosskey.15 And, Henry Friendly rightly reminds us that Mr. Justice
Brandeis contemplated only applying Erie to "the law of the State
• . .declared . . . by its highest court." It was the Hughes Court, of
which Felix Frankfurter was a member, that chained our federal
district courts, (in the absence of a decision by the highest court of a
state) to that of the lowest in the vicinity, right or wrong.
The suggestion of Judge Friendly that King v. Order oJ" United
Commercial Travelers,6 and the more recent Bernhardt v.
Polygraphic Co." has corrected the outrageous error in the Field and
West cases is, I think, asking too much. King was on the books when
I published in 1949 and when Crosskey wrote in 1954 and we both
agreed that the case was distinguishable from Field and West. Not
only are both cases distinguishable but in neither case does the
Supreme Court overrule Field or West. It is not right to say as Henry
does that "If some federal judges have been slow to learn the lesson,
it is not the Supreme Court, much less Mr. Justice Brandeis that is to
blame."
Undoubtedly a smart Circuit Judge like Henry would write an
opinion going back to what Mr. Justice Brandeis intended in Erie,
namely following the decision of only the highest court of the state
but he is asking far too much of the average judge, circuit or district.
Not only I, but any judge I know, would feel better if Mr. Justice
Black and his brethren said in so many words for the none too bright,
that their decisions in. Field and West were outrageously incorrect and
that they deeply regret them and overrule them. It would be even
better if they said the same thing about Erie v. Tompkins.
I confess that there have been decisions that have led me to believe
64.
65.
66.
67.
Corbin, 7he Law oJ the Several Staies, 50 YALE L.J. 762 (1941).
2 W. CROSSKEY. supra note 16, at 922-27.
333 U.S. 153 (1948).
350 U.S. 198 (1956).
THE AMERICAN UNIVERSITY LA W REVIEW
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from time to time that there were cracks in the wall that was Erie
which would cause the wall to crumble and disappear. For instance, in
D'Oench, Duhme & Co. v. FDIC8 and (learfield Trust Co. v. United
States,6 9 the Court applied Federal Common Law to rights on
Government owned negotiable paper. But no sooner had it done this
than it took a step backward and said that suits on stolen
Governmental bonds between private parties were to be governed, not
by federal but state rules of evidence. See Bank of American National
Trust & Savings Ass'n v. Parnell.'
In Parnell which involved the First National Bank in Indiana,
Pennsylvania and the Federal Reserve Bank at Cleveland, I am glad
to say that Mr. Justice Black dissented in a magnificient opinion that
Mr. Justice Douglas joined. He said:
We believe that the "federal law merchant," which Clearjield Trust
Co. v. United States, held applicable to transactions in the commercial
paper of the United States, should be applicable to all transactions in
that paper. Indeed the Court said in National Metropolitan Bank v.
United States, 323 U.S. 454, 456, that "legal questions involved in
controversies over such commercial papers are to be resolved by the
application of federal rather than local law." Not until today has a
distinction been drawn between suits by the United States on that paper
and suits by other parties to it. But 'the Court does not stop there.
Because this is "essentially a private transaction," it is to be governed
by local law. Yet the nature of the rights and obligations created by
commercial paper of the United States Government is said to be
controlled by federal law. Thus, federal law is to govern some portion of
a dispute between private parties, while that portion of the dispute which
is "essentially of local concern" is to be governed by local law. The
uncertainties which inhere in such a dichotomy are obvious. Cf. Southern
Pacific Co. v. Jensen, 244 U.S. 205; Davis v. Department of Labor, 317
U.S. 249.
The virtue of a uniform law governing bonds, notes and other paper
issued by the United States is that it provides a certain and definite
guide to the rights of all parties rather than subjecting them to the
vagaries of.the laws of many States. The business of the United States
will go on without that uniformity. But the policy surrounding our
choice of law is concerned with the convenience, certainty, and
definiteness in having one set of rules governing the rights of all parties
to government paper, as contrasted to multiple rules. If the rule of the
68. 315 U.S. 447 (1942).
69. 318 U.S. 363 (1943).
70. 352 U.S. 29 (1956).
19691
"THE" TRUE NATIONAL COMMON LAW
Clearfield Trust case is to be abandoned as to some parties, it should be
abandoned as to all and we should start afresh on this problem.'
Reading this dissent, one has to ask how it differs in principle from
Swift v. Tyson and why negotiable paper should be subject to the laws
of 50 different states instead of one uniform true Federal Common
Law. As we said above, if it is just to exempt the Government from
Erie, it ought to be equally just to exempt the rest of us.
Some of us also believe that Hannah v. Plummer,72 has reversed the
Ragan decision but remembering Parnell, who can be sure? In that
case an Ohio citizen sued in the United States District Court for
Massachusetts, placing jurisdiction in diversity, defendants being
Massachusetts citizens. The action was for damages in excess of
$10,000 for personal injuries caused by the negligence of the deceased
Massachusetts citizen. The action began by leaving the complaint at
defendant executor's home in compliance with Rule 4(d)(1) of the
Federal Rules of Civil Procedure. Service was illegal under
Massachusetts law because not made within a year and on the
executor with a notice as defined in the statute. Citing both Ragan
and York, the district court dismissed and the First Circuit affirmed.
Reversing, the Supreme Court said that Rule 4(d)(1), "designed to
control service of process in diversity actions, neither exceeded the
congressional mandate embodied in the Rules Enabling Act nor
transgressed constitutional bounds, and that the Rule is therefore the
standard against which the District Court should have measured the
' 73
adequacy of the service.
Yet as my Irish Grandmother was wont to say: "Sometimes I do be
thinking. Then again I don't know." Just as I was so happy about
Hannah v. Plummer which, as I read it, knocks Brandeis's
constitutional point in Erie into a cocked hat, Abe Fortas decided
United States v. Yazelfi on a basis which I reason as "Texas for the
Texans." There the Small Business Administration made a $12,000
diasaster loan to Yazell's Little Ages, a children's dress shop in
Lampasas, Texas. Ethel Mae Yazell went on the note, Texas law then
providing that a married woman could not bind her separate property
without a court decree which she did not obtain.
Despite Clearfield and despite its being a federal contract and loan
71.
72.
73.
74.
Id. at 35 (some citations omitted).
380 U.S. 460 (1965).
Id. at 463-64.
382 U.S. 341 (1966).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
Mr. Justice Fortas held that Texas law applied. At the Court of
Appeals for the Fifth Circuit, Judge Prettyman had held the reverse
saying, as any Yale man ought to say, that "A loan from the Federal
Government is a federal matter and should be governed by federal
law. There being no federal statute on the subject, the Court must
fashion a rule. This is the clear holding of Clearfield v. United
States,"7 5 Adopting Judge Prettyman's opinion verbatim in a dissent
that Justices Douglas and White joined, Hugo Black added this
typical tid-bit:
Though I think that Judge Prettyman's dissent is enough to justify his
rejection of the Texas law of "coverture" as a part of federal law, I
consider it appropriate to add another reason, which in itself would be
enough for me. The Texas law of "coverture," which was adopted by its
judges and which the State's legislature has now largely abandoned, rests
on the old common-law fiction that the husband and wife are one. This
rule has worked out in reality to mean that though the husband and wife
are one, the one is the husband. This fiction rested on what I had
supposed is today a completely discredited notion that a married woman,
being a female, is without capacity to make her own contracts and do
her own business. I say "discredited" reflecting on the vast number of
women in the United States engaging in the professions of law, medicine,
teaching, and so forth, as well as those engaged in plain old business
ventures as Mrs. Yazell was. It seems at least unique to me that this
Court in 1966 should exalt this archaic remnant of a primitive caste
system to an honored place among the laws of the United States.76
Textile Workers Union v. Lincoln Mills,77 established that Federal
Common Law will govern in the labor field just as Corn Exchange
Nat'l Bank & Trust Co. v. Klaude78 and Prudence Realization Corp.
v. Geist,79 had earlier established that Federal Common Law governs
generally in bankruptcy and, of course, this has long been the rule in
admiralty. Henry Friendly, himself in United States v. Wegematic
Corp. 0 has established that Federal Common Law governs the
interpretation of Government contracts and I should hope
Government subcontracts.
I can agree with Henry Friendly that as upsetting as Erie has been,
it does force us to find a federal statute or constitutional provision
75.
76.
77.
78.
79.
80.
334
382
353
318
316
360
F.2d
U.S.
U.S.
U.S.
U.S.
F.2d
454, 456 (5th Cir. 1964).
at 361.
448 (1957).
434 (1942).
89 (1942).
674 (2d Cir. 1966).
19691
"'THE" TRUE NATIONAL COMMON LA W
under which the Court assumes jurisdiction and applies the Federal
Common Law. To this extent, Erie has been a blessing.
However, as I pointed out earlier, every diversity case presents a
Choice of Law problem which cannot be left to 50 states to decide
every which way. Granted that Federal Question jurisdiction today
occupies fields that yesterday were served by classifying them as
"general law" under Swift v. Tyson, I deny that "the combination of
Erie with Clearfield and Lincoln Mills has brought us to a far, far
'
better [world] than we have ever known before.' 18
These decisions would have been unnecessary, were it not for Erie.
When the Hughes Court reversed itself and upheld federal legislation
under the commerce clause which, the day before, it had declared
unconstitutional, decisions extending Federal Common Law to federal
contracts and to our national social legislation were inevitable.
What Henry Friendly and Hugo Black fail to see is that Erie v.
Tompkins is a reactionary throw back to the one hundred years that
the Court beginning with Taney struck down federal laws and built
up state. It is the same Court mentality that forced Marshall against
his better judgment in Barron v. Baltimore2 to say that the American
Bill of Rights does not apply to the states0 3
Today, we have a situation with Erie v. Tompkins, that is hurting
the prestige of the Court as much, if not more than its refusal
yesterday to apply the Bill of Rights to the states. In truth, with that
battle won, the public image of the Court suffers much more because
of Erie.
Today the Supreme Court writes formal opinions in but 100 cases.
What are they? By and large half of them are police cases and the
other half principally interpretations of federal statutes or review of
federal agency action.
The Supreme Court does not take more than one good law case a
year. It is not reviewing the work that lawyers do. It is too deep in
the police field and too occupied with silly, trivial administrative law
questions. It handles too much public and too little private law.
If it were not for Erie, basic law points that affect ordinary
business transactions would come to the court and the country would
benefit from a national uniform true National Commoti law. As it is,
the Court is out in left field, reviewing with certain notable exceptions
81. Friendly, supra note I, at 92.
82. 32 U.S. (7 Pet.) 243 (1833).
83. 2 W. CROSSKEY, supra note 16, at 1049-82.
THE AMERICAN
UNIVERSITY LA W REVIEW
[Vol. 18
(such as tax and antitrust) matters with which the American bar as a
whole does not deal. This is why we find so many practicing lawyers
so critical of the Court.
It has been the style this year to praise ad nauseum the Warren
Court and to point with pride and affection to the Chief Justice's
great opinions in Brown v. Board of Education,84 Mr. Justice
85
Brennan's in Baker v. Carr,
Mr. Justice Black's in Wesbury v.
8
Sanders, and Chief Justice Warren's in Reynolds v. Sims.8 7 I agree
these were great and the praise we heap upon these Justices and the
Court for these decisions is warranted.
But let me focus on the worst decision of the Warren Court from
which the country still suffers, namely Richards v. United States.88 In
that case, the Warren Court in a suit against the United States
unanimously said it was of no consequence or interest to it whether a
federal court in Oklahoma applied Oklahoma or Missouri law.
In that case, it reads the unfortunate choice of law provision in the
Torts Claims Act which makes the United States liable, "under
circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where
the act or omission occurred," 9 as permitting any United States
District Court to adopt the peculiar choice of law rule of any State in
which the suit is brought.
As you might expect, Chief Justice Warren first says that because
of the provision in the Torts Claims Act, the Court
need not pause to consider the question whether the conflict-of-law rule
applied in suits where jurisdiction rests upon diversity of citizenship shall
be extended to a case such as this, in which jurisdiction is based upon a
federal statute.90
He cites Klaxon v. Stentor, among other authorities. Of course, this
exclusion by the Chief Justice of the effect of Klaxon is questionable.
If the Court had heard argument as to the soundness of Klaxon it
would, I am sure, have concluded that that case was wrongly decided.
But assuming Klaxon is sound, applying Klaxon in airplane cases
results as we have seen in some persons recovering unlimited damages
84.
85.
86.
87.
88.
89.
90.
347 U.S. 483 (1954).
369 U.S. 186 (1962).
376 U.S. I (1964).
377 U.S. 533 (1964).
369 U.S. I (1962).
Id. at 2-3.
Id. at 7.
1969]
"THE" TRUE NATIONAL COMMON LA W
and others recovering only the statutory limit. In Richards, the
Missouri statute had a $15,000 limit whereas the Oklahoma statute
allowed unlimited damages but it had no extraterritorial effect.
Without deciding what law should be applicable, Chief Justice
Warren in this opinion allows the district court to follow whatever
rule Oklahoma chooses.
In Richards, the plaintiffs were legal representatives of persons
killed when American's plane crashed in Missouri and they were
assured of the $15,000 limit in the Missouri statute. Their suit in
Oklahoma was to take advantage of the Oklahoma unlimited
wrongful death statute. Deciding, as he does, that the district court
could do whatever Oklahoma did, meant that the complaints were
dismissed and regardless of the value of the petitioner's lives or the
degree of negligence of American, that each was limited to the
$15,000 limit in the Missouri statute.
Of course, if suit had been brought in New York or Pennsylvania
by citizens of either of .these states then the so-called "contacts"
theory of those states would result in the New Yorkers and the
Pennsylvanians killed by American in Missouri recovering unlimited
damages. Long v. Pan American World Airways, Inc." Certainly,
Congress in enacting the conflict-of-laws section of the Tort Claims
Act never intended that citizens of Missouri and Oklahoma would be
limited to the $15,000 limit of the Missouri statute while New
Yorkers and Pennsylvanians collected unlimited damages.
The Richards case was wrongly decided and remains on the books
to haunt us. It should be reconsidered because it does not achieve
national uniformity, promotes injustice and overlooks completely the
constitutionality of the Missouri statute. Statutes of this type are of
another age. They are rightly called "back-up" statutes because their
monetary limit encourages backing up upon and killing the person
you have hit so that if the scoundrel lives, he won't be able to sue you
for damages for personal injury. You keep that action away from him
by killing him.
It, therefore, was a bad day at Black Rock when the Court
unanimously gave its imprimatur to Richards. And what flabbergasts
you when you read the opinion is the fulsome praise the Chief Justice
heaps upon the so called "contacts" theory of recovery without any
realization whatsoever that he is practicing the worst kind of
discrimination, the very last thing the good Chief Justice would ever
91. 16 N.Y.2d 337, 213 N.E.2d 796. 266 \.Y.S.2d 513 (1965).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
knowingly do. His decision is a flagrant violation of privileges and
immunities, equal protection and due process and guarantees that the
Tort Claims Act will not apply uniformly to all Americans.
Choice of law is a federal, not state matter and the task of making
the Choice should be the responsibility of the Supreme Court of the
United States. It cannot duck the question. Federal district courts
should be made to apply one uniform national conflicts of law, and
should not be chained to an Oklahoma version right or wrong.
As a result of the Warren Court's evasion of its review powers in
Richards, there is no court in the land, state or federal, that can tell
what law to apply to an automobile accident or airplane crash.
What happens? Take Pearson v. Northeast Air Lines. On the trial
of that case, the United States District Judge, John McGohey, felt
constrained by Klaxon v. Stentor,2 and Griffin v. McCoach,3 (and
see my "Weary Erie" where we discuss both) to apply the law of
New York as represented by the decision of the Court of Appeals of
the State of New York in Kilberg v. Northeast Air Lines, Inc." This,
you will recall, held that New York in allowing recovery for damages
for a wrongful death on Nantucket Island in Massachusetts could rely
on the Massachusetts death statute to give Kilberg's widow a cause of
action without limiting her recovery to the $15,000 statutory limit.
Along with Pearson, Judge McGohey had another case involving a
lawyer who was a New Jersey resident. His ruling there was that since
the New Jersey courts had not spoken on the Kilberg point, he would
assume that New Jersey would apply the Massachusetts statute as
written. When he threatened to charge the jury under the
Massachusetts statute, the widow of the New Jersey lawyer settled.
Consider the injustice of this ruling. The New York plaintiff
because of Chief Judge Desmond's opinion in Kilberg, recovers
$130,000 plus $30,000 more in interest. The poor New Jersey widow
whose husband perhaps sat in the seat next to Pearson is held to the
$15,000 limit of the Massachusetts statute. Why does a good Judge
like John McGohey have to make such an unjust ruling? The answer?
Erie v. Tompkins and Klaxon v. Stentor both of which chain him to
the Conflict of Laws rule of the State, right or wrong,
nondiscriminatory or discriminatory. This should not be. It frustrates
the national purpose of granting judicial power to federal courts. It
92. 313 U.S. 487 (1941).
93. 313 U.S. 498 (1941).
94. 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
1969]
"THE" TRUE NATIONAL COMMON LAW
prevents the Supreme Court's becoming the judicial head of this
nation and makes it primarily a police and administrative law court.
Consider what the Second Circuit did on the appeal of Pearson. In
Klaxon v. Stentor you will recall that the Supreme Court said that
when a plaintiff sued on a New York cause of action in the United
States District Court for Delaware, interest was to be calculated at
the Delaware rate, not at New York's six per cent rate. Therefore,
Judge McGohey acted as you or I or any sensible person would and
added interest of some $30,000 to the jury's $130,000 verdict for
Mrs. Pearson. What did the Second Circuit do? Believe it or not that
court said that while New York law applied to give Mrs. Pearson a
cause of action to sue for unlimited damages under the Massachusetts
statute, interest could not be allowed as Massachusetts does not allow
interest on personal injury verdicts. Could anything be more absurd
than this? If Mrs. Pearson can sue under New York law for unlimited
damages, upon what rational basis can she be denied interest? Does
the Second Circuit wish to overrule Klaxon v. Stentor, itself an
interest case, that it approves Judge McGohey's following?
After the Court of Appeals of the State of New York decided
Kilberg v. Northeast Airlines, it went on to decide Babcock v.
7
Jackson, 5 Dym v. Gordon,96 and more recently Kell v. Henderson
The theory of all these cases is that New York may make its own
independent choice of law depending on the "contacts" of the persons
involved with New York.
In Babcock, for instance, though the accident took place in Ontario
where guests cannot sue, because the car was owned by a man from
Rochester, N. Y. and his guests came from there, New York law
permits the guests to sue. Yet in Kell, where the accident took place
in New York and the car was owned by a Canadian, his Candian
guests are also allowed to sue in New York. The rule seems to be that
heads, the suing plaintiff wins and tails the defendant loses.
Really in both these cases, New York is making a Choice of
International Law which ought to be the job of the Supreme Court of
the United States. What New York is really saying is that the
Canadian statute forbidding guests from suing is too unjust to
enforce. It lacks the courage to say so directly.
Personally I agree whole heartedly with this result but I think this
95. 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
96. 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965).
97. 26 App. Div. 2d 595, 270 N.Y.S.2d 552 (Sup. Ct. 1966).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
Choice of Law, be it international or domestic, is for the Supreme
Court of the United States and whatever the choice, it ought to be a
uniform national law, not one way in New York, and another and
another in each of the other 50 states.
However unwisely reasoned, New York's decisions in hilberg.
Babcock and Kell pale in insignificance to New York's most recent
decisions in Seider v. Roth,"8 Simpson v. Loehniann9 and Victor v.
Lyon Associates, Inc.'
In Seider, two plaintiffs, husband and wife were injured in an
automobile accident in Vermont involving three cars, the Roth car, a
car driven by one Lemiux, who lived in Quebec, and the Seider car.
Alleging the accident was caused by the negligence of Lemiux,
plaintiffs, who were New York residents, instituted suit against
Lemiux in the Supreme Court of the State of New York, Nassau
County, by obtaining an order directing the Sheriff of Nassau County
"to levy on the contractual obligation of Hartford Accident and
Indemnity Company to defend and indemnify Lemiux under a policy
of automobile liability issued in Canada by Hartford to Lemiux."
Lemiux was personally served in Quebec. Hartford "is an insurer
doing business in New York State and the attachment papers were
served on it in New York State." By a four to three decision (Chief
Judge Desmond writing for Judges Fuld, Van Voorhis and Keating;
and Judge Adrian Burke writing in dissent for Judges Scileppi and
Bergan) the Court of Appeals of New York upheld the attachment in
Seider v. Roth.
One year later the Court of Appeals was asked to reconsider its
Seider decision in Simpson v. Loehnzann, a case on all fours except
that the accident was in a boat "in waters off Madison, Connecticut"
insured by Insurance Company of North America. Meanwhile, Chief
Judge Desmond retired and was succeeded by Judge Breitel. In
Simpson, Adrian Burke again dissented for himself and Judge
Scileppi but in an opinion in which Judge Bergan concurred, Judge
Beitel joined the majority and upheld the attachment. In so doing he
deplored Seider as theoretically unsound and impractical, but
concurred "only because the institutional stability of a court is more
important than any single tolerable error which I may believe it has
committed."
98. 17 N.Y.2d 111,216 N.E.2d 312, 269 N.Y.S.2d 99 (1966).
99. 21 N.Y.2d 305, 234 N.E.2d 669, 287 N.Y.S.2d 633 (1967).
100. 21 N.Y.2d 695, 234 N.E.2d 459, 287 N.Y.S.2d 424 (1967). appeal dismissed, 37
U.S.L.W. 3118 (U.S. Oct. 15, 1968).
1969]
"THE" TRUE NATIONAL COMMON LAW
After the Simpson opinion was published, Judge Croake in the
United States District Court for the Southern District of New York
in Podolsky v. Devinney0 01 considered a Seider type attachment and
held it unconstitutional. A footnote in his opinion indicates that his
entire holding of unconstitutionality was predicated on Section 320(c)
of the New York Civil Practice Law and Rules (CPLR) which
prevents a defendant sued in rem from defending in rem unless he
submits to full in personam jurisdiction.
After Judge Croake's decision, the defendant in Simpson moved to
reargue. There then appeared what David R. Siegel in a brilliant
"Practice Conmmentary " I"2 to Section 5201 CPLR calls "a
miraculous per curiam opinion" in Simpson' 3 in which the entire
court concurred. It reads:
z
For the purpose of pending litigation, which looks to an ultimate
judgment and recovery, such value [the value's being the res attached in
Seider based case] is its [the insurance policy's] face amount and not
some abstract or hypothetical value.
In other words by this per curiam, the Court of Appeals seeks to
obviate Judge Croake's objection by saying that the defendant in a
Seider type attachment does not incur any personal liability. The
Victor case, was companion to Simpson., The appeal there to the
Supreme Court of the United States was dismissed for want of a
federal question.
What does all this prove? It means that New York has now pushed
Kilberg, " KeIl 0 5 and Babcock' a step further. A New York resident
may now sue in New York by attaching the so-called debt or
obligation to defend of any insurance company that insures a defendant
any place in the world provided only it has an office in New York.
Judging by what the Court of Appeals has decided in the past, this
means any New York resident can take advantage of the New York
statute of limitations, and its decisions allowing recovery of unlimited
damages in actions for wrongful death with interest even though the
accident did not occur in New York and even though the defendant be
otherwise immune from service of process there. So long as the
insurance company that insures the defendant does business in New
101.
102.
103.
104.
105.
106.
281 F. Supp. 488 (S.D.N.Y. 1968).
7B McKinney's CPLR 5201, supp. commentary 15 (1968).
21 N.Y.2d 990, 238 N.E.2d 319, 290 N.Y.S.2d 914 (1968).
9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
26 App. Div. 2d 595, 270 N.Y.S.2d 552 (Sup. Ct. 1966).
12'N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
York, the New York resident can sue at home and have his case
decided under New York law whether the accident took place in
Canada or another state. David D. Siegel rightly calls this "a
bootstrap situation,"' 17 and in his excellent dissent in Seider, Adrian
Burke pays Siegel the compliment of citing his commentary.'"' More
recently Malcolm L. Stein, a Lecturer in Law at Columbia Law
School has collected the many articles that have been written on
Seider and concludes that the attachment there was
9
unconstitutional.'
The right to sue a defendant by attaching one of his debtors
wherever you catch him was upheld long ago by the Supreme Court
in a suit involving $180, to wit Harris v. Balk."" There the defendant
lived in North Carolina. The garnishee who owed the $180 was also a
North Carolinean but he made the mistake of going to Baltimore and
defendant's creditor attached the $180 debt which the garnishee paid.
In a suit against the granishee in North Carolina, the Supreme Court
of the United States held that the Maryland attachment was valid and
the debt discharged by the payment.
Over a long period, scholars such as Professor Elliott Cheatham
and others have doubted the wisdom of Harris v. Balk. Subsequent
cases have cast doubt on it, particularly Hanson v. Denckla"' where
the Supreme Court refused to draw into a Florida probate assets in
the hands of a trustee in Wilmington, Delaware. As David Siegel
says, "There is something deeply and inherently wrong with
Seider."" 2 What is wrong is that New York has no constitutional
right to hear and decide such a case even if its attachment be valid.
The Federal Government cannot allow New York to interfere with the
national business of its citizens and corporations by such a provinical
service of process. It puts too great a burden on "commerce."
Actions involving citizens of different states and choice of law
should be decided by federal, not state law. All these actions,
107. 7B McKinney's CPLR 5201, supp. commentary 15, 52 (1968).
108. 17 N.Y.2d at 115. 216 N.E.2d at 315, 269 N.Y.S.2d at 103.
109. Stein. Jurisdiction by Attachment or Liability Insurance, 43 N.Y.U.L. RLiv. 1075 (1968).
110. 198 U.S. 215 (1905).
III. 375 U.S. 235 (1958). See also Texas v. New Jersey. 379 U.S. 674 (1965) where the
question was as to what state unclaimed debts on the books of the Sun Oil Company would
escheat. C1. United States v. First City National Bank, 379 U.S. 378 (1965) where over a wellreasoned dissent by Mr. Justice Harlan. the court allows the United States to levy at City
Bank's head office in New York on a bank balance in the currency of Uruguay at City Bank's
Montevideo branch bank.
112. 7B McKinney's CPLR 5201, supp. commentar, 15. 38 (1968).
1969]
"'THE" TRUE NATIONAL COMMON LA W
moreover, involve jurisdiction and commerce in which it is essential
that the litigants be accorded procedural due process. This is the
responsibility of our federal court system. The Supreme Court should
have noted jurisdiction in Victor"3 and repudiated Seider v. Roth."'
But, of course, if the Supreme Court had taken certiorari in
Pearson"5 as it should have, New York might not have pressed its
Kilberg"8 decision to the lengths it did in Seider v. Roth, not to
mention Babcock and Kell. This is but another instance of the price
we pay for the failure of the Supreme Court to take certiorari in these
choice of law cases and write a definitive opinion to guide the lawyers
and courts who have to try these cases and can only guess as to what
the law is.
Still another area of great confusion is the constitutionality of the
Warsaw Convention. Until recently that treaty has limited the liability
of an air carrier under an international ticket to a country that is a
signatory to 125,000 Poincare francs or $8,291.
Recently the constitutionality of the Warsaw Convention came
before Judge Nicholas J. Bua in the Law Division of the Circuit
Court of Cook County, Chicago, Illinois in Burdell v. Canadian
Pacific Airlines, Ltd. "7 There the widow and three children of Frank
Burdell sue for damages for his wrongful death when on a flight from
Hong Kong to Tokyo, Japan the Douglas plane Canadian Pacific was
flying crashed on March 4, 1966 on its approach to the Tokyo
airport. Burdell, an American citizen, was the Far East representative
of the Hyster Company of Peoria, Illinois. Canadian Pacific is subject
to in personan jurisdiction in Illinois where it does business.
Judge Bua denied a motion of Canadian Pacific to dismiss the
complaint. The first ground of his decision is that, as Judge Lloyd
MacMahon held in Lisi v. Alitalia Airlines,"" for Canadian Pacific to
take advantage of the Warsaw Convention, it must in large clear print
on the ticket notify the passenger of its limitation of liability. Judge
Bua found the notice on Burdell's ticket to be in "Lilliputian"
printing. Just as Judge MacMahon held in Lisi so Judge Bua here
finds the Warsaw liability notice "artfully camouflaged,"
"ineffectively positioned, dimunutively sized and unemphasized by
bold face type, contrasting color or anything else."
113.
114.
115.
116.
117.
21 N.Y.2d 695, 234 N.E.2d 459, 287 N.Y.S.2d 424 (1967).
17 N.Y.2d III, 216 N.E.2d 312, 269 N.Y.S.2d 99 (1966).
309 F.2d 553 (2d Cir. 1962).
9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
No. 66L 10799 (Cook County Cir. Ct. Nov. 7. 1968).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
As a second ground, he also held that the flight was not subject to
the Warsaw Convention because at the time of the crash the
Government of Singapore (where Burdell bought his ticket) was not a
signatory of the Warsaw Convention.
It is the third ground for his decision that interests us. Canadian
Pacific argues that under the Warsaw Convention, Illinois has no
jurisdiction and suit by Mrs. Burdell and her children must be
brought at: (I) domicile of the carrier; (2) the principal place of
business of the carrier; (3) the Place where the contract of carriage
was made; or (4) Tokyo, the destination. In other words, Canadian
Pacific contends that under the Warsaw Convention neither the
Illinois nor United States courts are a proper forum.
On this branch of the case Judge Bua holds as Mr. Justice Black
did in Reid v. Covert"9 that a treaty ratified by a two-thirds vote of
the Senate only, is as much subject to the Constitution as a law
passed by both houses of the Congress and signed by the President. In
this he is, of course, 100% correct.
Quoting the well known comment in the Harvard Law Review,'
Judge Bua points out how in 1934 "without debate, committee
hearing or report the Senate gave its advice and consent by voice
vote" long before the first jet flew the Atlantic.
From published statistics,' the Judge also takes judicial notice that
whereas in 1935 there were only 33,000 passengers carried in
international airline passenger service, by 1967 the figure had become
13,424,000. He also observes that from 1950 until 1964, settlements of
claims under the Warsaw Convention have cost only $1,382,247 or an
average for each passenger fatality of only $6,489 whereas nonWarsaw Convention settlements for the same period totalled
$55,900,883 or an average of $38,499. These figures he took from
Lowenfeld and Mendelsohn's Harvard Law Review study.' You will
recall their conclusion was "that the passenger legal liability coverage
is a relatively small proportion of the overall operating costs of an
118. 253 F. Supp. 237 (S.D.N.Y. 1966), aJjfd, 370 F.2d 508 (2d Cir. 1966). al/*d. 390 U.S.
455 (1968) (equally divided court), rehearing denied, 391 U.S. 929 (1968).
119. 354 U.S. I (1957). Judge Bua cites as his authority: W. COWLES. TREATILS AND
CONSTITUTIONAL LAW: PROPERTY INTERFERENCES AND DUE PROCESS OF LAW (1941);
RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW 117, comment d at 372 (1965);
Gardner, Sonte Legal Advice: So You're Going to Fly to London. 43 A.B.A.J. 412 (1957).
120. Lowenfeld and Mendelsohn, The 'nited States and The Warsaw Convetion, 8G HARV.
L. REV. 497 (1967).
121. AEROSPACE FACTS AND FIGURES 105 (1968).
122. Lowenfeld and Mendelsohn, supra note 120, at 554.
1969]
"THE" TRUE NATIONAL COMMON LAW
airline." Their estimate is that insurance costs are "clearly somewhere
between the costs of the olive and the cost of the gin in the martini
and nowhere near the cost of an inflight movie."
This leads Judge Bua to this conclusion:
The Court finds that the venue provisions and damage limitation
provisions of the Warsaw Convention Treaty are unconstitutional, as
applied to this case; that such provisions deny to the plaintiffs due
process and equal protection of law guaranteed to them by the Constitution ...
The Court finds that such provisions are arbitrary, irresponsible,
capricious and indefensible . . .Such injustifiable preferential treatment
of airlines is unconstitutional. The Court finds such preferential
discrimination to airlines does not apply to manufacturers or even to the
United States Government. As pointed out by the plaintiffs, this could
result in an absurd situation in which, in this case, Douglas Aircraft
Company, if liable under either the strict liability rule or because of
common law negligence, might be required to pay damages of $591,700
if a verdict of a jury were $600,000. Canadian Pacific Airlines, which
might be considered much more negligent and at fault than this
defendant manufacturer, would be permitted to escape with a nominal
payment of approximately $8,300. The Government enjoys no immunity
or restriction of liability. Thus, in a similar situation involving the
Government as an additional defendant, the United States Government
would be required to pay damages similar, comparatively, to that of the
manufacturer. The Court considers that there is no basis for this unequal
and discriminatory treatment of common carrier airlines, engaged in
international travel, and that there is no legal or rational basis for this
discriminatory treatment.'2
True the Warsaw Convention Treaty's constitutionality is clearly a
federal question but this aspect of it which Judge Bua finds
unconstitutional does not differ in principle from the decision in
Pearson allowing Mrs. Pearson to recover unlimited damages and
holding the New Jersey widow to the $15,000 limit of the
124
Massachusetts statute.
Nor indeed does it differ in principle from the position of the
United States in Richards,'2 . paying with the blessing of the Supreme
Court the $15,000 limit of the Missouri statute there and unlimited
damages to New Yorkers and Pennsylvanians.
123. No. 66L 10799 (Cook County Cir. Ct. Nov. 7, 1968).
124. 309 F.2d 553 (2d Cir. 1962).
125. 369 U.S. I (1962).
THE AMERICAN UNIVERSITY LA W REVIEW
(Vol. 18
Discrimination whether by treaty, statute or judge-made law is
equally unconstitutional.
It is a dreadful thing to have to say but, in truth, decisions such as
Kilberg,126 Pearson,t 21 Long 128 and Scott'2 9 lack the simplicity and
honesty of Judge Bua's ruling in Burdell.30 Here at last is a Judge
who faces up to the real problem, the constitutionality of outrageous
discriminatory, out of date, rotten laws.
Take the Babcock,'3 ' and Kell 3 2 automobile cases involving as they
do the Canadian guest statute.
Instead of going into what seems to be a legal trance and counting
"contacts" et al, how much more honest it is to say what is meant,
namely that it is unfair and indeed unconstitutional to deny a guest
the right to sue his automobile host for damages for negligence?
In an entertaining and valuable article Edward L. Lascher
demonstrates the irrationality of California's guest statute. 33
Apparently he was inspired to write when the Supreme Court of
California recently decided that its guest statute "applies only on the
highway."' Since it had previously held the statute inapplicable when
you could establish the passenger was not going for a ride or what
Lascher calls "The Best Brouhaha", that the purpose was not a
"ride" but for a specific "consideration,"'3 the highway distinction
was too much for Lascher even though he confesses to being "an
unashamed chauvinist when it comes to the California judiciary.' 3
Incidentally Lascher also points out the absurdity of the contacts
37
theory in conflict of law cases.
His argument, "in a nutshell," is that "the equal protection clause
' 38
requires rationality.'
126.
127.
128.
129.
130.
131.
132.
133.
9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961).
309 F.2d 553 (2d Cir. 1962).
16 N.Y.2d 337, 213 N.E.2d 796, 266 N.Y.S.2d 513 (1965).
399 F.2d 14 (3d Cir. 1967), cert. denied, 89 S. Ct. 446 (1968).
No. 66L 10799 (Cook County Cir. Ct. Nov. 7. 1968).
12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).
26 App. Div. 2d 595, 270 N.Y.S.2d 552 (Sup. Ct. 1966).
Lascher, Hard Laws Make Bad Cases- Lots oJ Thent (The Caljornia Guest Statutel, 9
SANTA CLARA LAWYER 1 (1968).
134. See O'Donnell v. Mullaney, 66 Cal.2d 994, 429 P.2d 160, 59 Cal. Rptr. 840 (1967).
135. Lascher, supra note 133, at 28.
136. Id. at II nA6.
137. Id. at 18-19 citing Reich v. Purcell, 67 Cal.2d 551, 432 P.2d 727 (1967); Ehrenzweig,
Guest Statutes in the Conflict oJ Laivs--Towards a Theorr oJ Enierprise Liabilityr
Under
"Foreseeableand Insurable Laws," 69 YALE L.J. 575 (1960).
138. Lascher, supra note 133, at 8.
1969]
"THE" TRUE NATIONAL COMMON LAW
Lawyer Lascher recalls that "the validity of auto guest legislation
under the Federal Constitution is premised exclusively on a 1929
decision of the Supreme Court, Silver v. Silver," 131where Harlan
Stone dealt with an attack on the Connecticut Guest Act. To Stone it
was sufficient that the State Legislature regarded a guest's suing his
automobile host as an "evil."
As Lascher says, "There is something almost quaint in both the
language and reasoning."' 4 0 To Lascher as to me, looking at Stone's
opinion 40 years later, it is more a museum piece than anything else.
What we need is for the Supreme Court to look at the
constitutionality of guest statutes on the adequate record it lacked in
Silver, "viewing the statute under the conditions of the mid-20th
century, rather than those which were contemporaneous with Henry
Ford's Model T."' 14
Lascher details the absurd distinctions the California Courts
have employed to prevent the application of their guest statute. He
figures his "state has expended five judge-years on working out
the knotty, inconsequential little problems" of this statute in the
course of deciding some 201 appeals."4
No wonder Edward L. Lascher has to conclude:
Three and a half decades of confusion, illogic, solecism,
gamesmanship-and unconstitutionality-are enough. Every segment of
the legal community knows the true nature and state of the guest statute;
it is time for some court to play the role of the proverbial small boy and
point out the truth to the sovereign-that the legislation is unclothed
11
with constitutionality.
Whether the question be a state's wrongful death statute or its guest
statute or its procedural rules, and the litigation arises in a state foreign
to the place of the accident, there is of necessity a choice of law and
that decision under our Constitution is for the Supreme Court of the
United States.
Since Richards, the Supreme Court has had at least four
opportunities to rule on this Choice of Law problem.
Northeast Airlines applied for certiorari in Pearson. The Court
denied it. " In Van Dusen v. Barrack, while the Court granted
139.
140.
141.
142.
143.
144.
Id. at 3-4 citing Silver v. Silver, 280 U.S. 117 (1929).
Lascher, supra note 133, at 4.
Id.at 5.
Id.at 24.
Id.at 31.
376 U.S. 612 (1964).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
certiorari, it reversed Judge Van Dusen and permitted Pennsylvanian
plaintiffs to sue Eastern Air Lines in diversity in a United States
district court in Pennsylvania even though the accident was the crash
of an Electra into Boston Harbor. In probably the worst opinion
Arthur Goldberg ever wrote in his all too brief time as Supreme
Court Justice, the Court ducked deciding what law would be
applicable on the trial before Judge Van Dusen.
Of course, the decision itself is dreadful in that instead of anchoring
all airplane accidents at the place of the crash, it encourages
scattering airplane accident suits throughout the Union. It makes a
mockery out of the venue statutes and drags down the reputation of
the courts, convincing the laiety that we are allergic to sensible
business methods whereby we efficiently handle all airplane cases in one
court before one judge instead of in many different courts in many
different places with many different judges duplicating the work of the
others. The only thing equal to it is the way we allow each judge to
sentence as he pleases.
But even if the Court were to uphold the venue in Philadelphia, it
should have decreed that the question of liability should be tried at the
place of the crash reserving until after trial the Choice of Law point
and, if liability be found, allowing Judge Van Dusen to try that in
Philadelphia. The decision in Van Dusen v. Barrack encourages suit
at the home of the deceased passenger. This may be legal but it is not
common or business sense. It is, moreover, precisely the kind of thing
about the law that drives business men out of their minds.
The third and fourth times that the Supreme Court had to rule on
this question was in Weinstein v. Eastern Air Lines, Inc., 145 and
recently Scott v. Fastern Air Lines, Inc."6
In this last case, Scott sued not only Eastern but also General
Motors, Lockheed and the United States in the United States District
Court for the Eastern District of Pennsylvania for damages for the
death of Thomas L. Moody on the same Electra involved in the
Barrack case. Scott, as a Pennsylvania citizen, sued Eastern, a
Delaware corporation, as the operator of the Electra, General Motors,
as the manufacturer of the Allison engines in it, Lockheed, a
California corporation as the manufacturer of the-airframe and the
United States as the operator of the control tower at Boston's Logan
Airport.
145. 316 F.2d 758 (3d Cir.), cert. denied, 375 U.S. 940).
146. 399 F.2d 14 (3d Cir. 1967).
1969]
"'THE" TRUE NATIONAL COMMON LAW
Negligence was charged in that on the take-off there were birds on
the runway which the jet eng'ines ingested. Before trial, the complaint
as to General Motors was dismissed. The claim against the United
States was heard by Judge Harold K. Wood, the trial judge, without
a jury but as of the date of the filing of the petition for certiorari had
not yet been decided. Judge Wood submitted the question of liability
of Lockheed and Eastern to the jury which returned a verdict against
Eastern but in favor of Lockheed. Pursuant to Judge Wood's charge,
the jury returned a verdict in favor of Scott for $2500 under
Pennsylvania's Wrongful Death Statute and $45,000 under that
state's Survival Statute.
Following the reversal of Judge Van Dusen's order changing the
venue in Van Dusen v. Barrack from the Philadelphia to Boston's
federal district court, the Supreme Court of Pennsylvania in Griffith
v. United Air Lines, Inc.,1 47 decided to embrace the so-called
"contacts" theory of Babcock v. Jackson. On the trial, it was
emphasized that since 1955 the deceased, Thomas L. Moody was
employed by Sears Roebuck at its office in Philadelphia as a field
man, his territory extending from Maine to Virginia and west to the
center of Ohio. He resided in and bought his ticket in Philadelphia, to
Boston on Northeast, returning on Eastern.
At the time of the accident in Boston, there was a limit of $20,000
in the Massachusetts wrongful death and survival statutes. Eastern on
appeal argued this statute was applicable and that the District Judge
should not have submitted the case to the jury under Pennsylvania law
(the Griffith case).
A panel of the Third Circuit headed by Chief Judge Hastie reversed
the judgment in favor of Scott and against Eastern. In his opinion for
the court, Chief Judge Hastie stressed that the accident was a
maritime tort to which admiralty law applied under Weinstein v.
Eastern Air Lines, Inc. 4 8 even when jurisdiction was also laid in
diversity. The Chief Judge said:
Once the dominance of federal law is recognized, it becomes apparent
that the rule and policy of Erie R. Co. v. Tompkins and Klaxon v.
Stentor Electric Mfg. Inc., are inapplicable. In those cases diversity
entitled the litigants to a federal forum but did not cause federal
substantive law to rule the issues in controversy. Here, the maritime
character of the tort brings the controversy under the governance of
147. 416 Pa. 1, 203 A.2d 796 (1964).
148. 316 F.2d 758 (3d Cir. 1963).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
federal law and it is immaterial whether admiralty or diversity
jurisdiction is relied upon as justification for suing in the federal forum.
Obviously, a court, thus undertaking to apply federal substantive law,
would have no occasion to defer to or apply state choice of law rules.""
Following Hess v. United States,5 ' and The Tungus v. SkovgaardY1'
Chief Judge Hastie then declared that in Admiralty the Massachusetts statute would apply because "Maritime law is national law and
its principles should, to the best of judicial ability, be recognized and
5 and added that:
applied uniformly,"'s
If the long and consistently accepted and applied rule of maritime law
which requires that the federal right of recovery in such cases as this be
measured by the provisions of Massachusetts law is to be modified, that
53
change should be made by the Supreme Court.
This opinion of Chief Judge Hastie was filed on March 30, 1967.
Thereafter, the plaintiff moved for a rehearing en banc which resulted
in a judgment on June 28, 1968 affirming the judgment of District
Judge Wood.
My friend, Professor Arthur Miller of the George Washington Law
School maintains that it is the result that matters and the theory
judges employ to reach that result really doesn't matter. Accordingly, he
strongly opposes law review articles in which the law professor tells
how much he agrees with the court's result but how much he deplores
the judges' various theories. I would be the last to deny that Art
Miller has a point but if ever there was a case meriting an exception
to Miller's rule, this is one.
Pennsylvania's Griffith, decision embracing New York's
"contacts" theory of the conflict of laws notwithstanding; Judge
Staley for the en banc court held that plaintiff's "contractual claim
against Eastern is rooted in Pennsylvania law" and, therefore,
"governed directly by the teaching of Klaxon v. Stentor which directs
district courts to look to the Choice of Law rule of the state in which
it sits."'' ' In addition, he held an action for wrongful death could be
brought in assumpsit under Pennsylvania law. Not to be outdone by
149.
150.
151.
152.
153.
154.
399 F.2d
361 U.S.
358 U.S.
399 F.2d
Id.
399 F.2d
at 17.
314 (1960).
588.(1959).
at 18.
at 22 (citations omitted).
19691
"THE" TRUE NATIONAL COMMON LAW
any admiralty lawyer, Judge Staley, as a "separate and independent"
ground for affirmance of the district court's judgment for plaintiff,
held that even if maritime law governs the tort aspects of the case, an
admiralty court is not bound to apply the law of the state with the
"most significant relations and contacts."
Then, Chief Judge Hastie received the most unkind cut of all. Judge
Seitz, who as a member of the panel had concurred in Hastie's March
30, 1967 opinion, changed his mind as a member of the en banc
court. On reconsideration, he concluded that the facts gave Scott an
election to sue in admiralty for a maritime tort or in the alternative in
diversity. Since Scott elected to bring a diversity suit, then the rules
applicable thereto apply, to wit Erie v. Tompkins and Klaxon v.
Stentor.
Judge Abraham Freedman also concurred in Judge Staley's
affirmance of the judgment for plaintiff but in doing so said it was,
unnecessary to decide whether maritime law or state law applies because
I reach the same result in either case. If State law applies either for the
reasons given in Judge Staley's opinion or those given in Judge Seitz's
opinion, I agree with them that the forum court must apply
Pennsylvania's conflict rules which under Grijfith v. United Air Lines,
Inc. would invoke the so-called contacts doctrine and render the
Pennsylvania rather than the Massachusetts law of damages applicable
under the facts in this case. If Federal maritime law applies, I would
reach the same result because I agree with Judge Staley that the choice
of law should in such a case also be made tinder the contacts doctrine.' 55
Three Judges, namely Seitz, Freedman and Kolodner concurred in
Judge Staley's opinion affirming the judgment of the district court for
the plaintiff, though as indicated the reasons of both Seitz and
Freedman differ from those expressed in the Staley opinion. Only
Kalodner concurs 100% with Judge Staley.
Chief Judge Hastie dissented in an opinion which Judges
McLaughlin and Ganey joined. Thus the judgment in plaintiff's favor
survived at the Circuit by a four to three Vote of the en banc court
which held the case over a year.
Speaking of the "contractual theory of liability" upon which Judge
Staley put so much emphasis, Chief Judge Hastie declared that,
the main trouble with that argument is that the alleged promise is a legal
fiction. The majority opinion concedes this, fairly stating that no
155. Id. at 29-30 (citations omitted).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
contract of carriage was in evidence and no finding was made that the
alleged contract of carriage did in fact include such promise., 6
Because under these circumstances the court was adopting a legal
fiction and calling the wrong proved in the case a legal fiction, on a
record that did not justify it, Chief Judge Hastie declared that, "to
invoke the ancient common law procedural device of waiving the tort
and suing in 'assumpsit' is merely to formalize and Latinize the
fiction without substantiating it. In reality, the wrong here is a tort
and nothing else."' 57 Recalling that the Third Circuit, previously in
Weinstein v. Eastern Airlines, Inc. had held that the accident in
question here "was a maritime tort within the admiralty jurisdiction
of the United States and its courts," Judge Hastie said it was
doubtful whether Pennsylvania under Griffith v. United Airlines, Inc.,
''would recognize and act upon an alternative view of this case as a
substantiated claim for breach of contract." To Hastie, this was
"doubtful" and "fundamentally" whether the claim be a maritime
tort or a Pennsylvania contract, "the federal court must decide for
itself what characterization is proper, without any duty of deference to
any State view." It is very interesting that Chief Judge Hastie
recognizes that admiralty has a Choice of Law. Being a maritime
tort, Hastie says that bringing the action in federal court for diversity
cannot change its admiralty character. Thus Erie v. Tompkins, and
Klaxon v. Stentor "have no proper application."
Under The Tungus, Chief Judge Hastie says that admiralty gives a
remedy for wrongful death "equivalent to the statutory wrongful
death remedy of the State within whose territorial waters the wrong
occurred." But he goes on to say that:
Admiralty might have employed some other device, for example,
allowing recovery equivalent to that provided by the Death on the High
Seas Act [DOHSA] 46 US Code 76 1-67. Or the less generous death
benefits under the Longshoremen's and Harbor Workers' Compensation
Act 33 U.S. Code 909 could have been used as a model. Indeed, courts
of Admiralty, adhering to historic maritime precept, might have refused
to allow any death recovery until Congress should so legislate. Or
Admiralty might inquire in each case what State has the most impressive
contact or aggregate of contacts, with the parties and transactions
involved in the fatal accident and borrow the remedy of that State for
wrongful death.'5 8
156. Id. at 32.
157. Id. at 33.
158. Id. at 34.
19691
"THE" TRUE NATIONAL COMMON LA W
Turning his attention to the argument that the court should adopt the
so-called contacts theory as the uniform admiralty national law, Chief
Judge Hastie voiced these objections:
This last alternative, which the majority now adopts, would introduce
new variables and new elements of uncertainty into the determination of
Admiralty awards for wrongful death. It also would invite forum
shopping and lead to litigated controversy, such as this disaster already
has produced over the removal of causes. It is difficult to believe that the
result of this change would be an improvement upon the present practice
of consistently borrowing the remedy of the place of wrong, one State
that always is substantially concerned with and historically has provided
a remedy for fatal accidents occuring within its borders. 59
Chief Judge Hastie concludes by raising the point argued
here-whether the limitation of liability to $20,000 in the
Massachusetts statute must be followed by the federal court sitting
either in diversity or admiralty or federal question. The good Judge
handles the point this way:
Finally, we have not overlooked the argument not considered by the
majority, that Admiralty should fashion the details of its own wrongful
death remedy without regard to any special limiting provisions of the
wrongful death statute of any concerned State. To us, this would make
sense. It also would make for desirable uniformity in maritime law. But
unless and until the Supreme Court shall adopt this position, as
unsuccessfully urged by the four dissenting Justices in The Tungus v.
Skovgaard, supra, we think an inferior federal court is obligated to allow
and define recovery here in the manner indicated by the wrongful death
60
law of Massachusetts.
In petitioning for certiorari, counsel for Eastern Airlines made the
point that "Certiorari is required to resolve mounting confusion in
this developing and substantial area by litigation," an understatement,
if ever I saw one. Counsel should have said that the Supreme Court's
unconstitutional refusal to grant certiorari in almost any diversity
case has resulted in lawyers not knowing how to try or judges to
decide any personal injury case where the parties hail from different
States.
What amuses me is the timidity of counsel for both plaintiffs and
defendants in these cases. Neither wants to make an Erie v. Tompkins
attack, nor raise any constitutional points. In large measure, the
159. Id.
160. Id. at 35.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
confusion is caused by them. But whether caused by courts or
lawyers, the confusion is real and it is the job of the Supreme Court
to take a case and decide what our national policy should be.
It was particularly unfortunate that the Court denied certiorari in
Scott. Here is a case that involves the many lawsuits that have arisen
out of the crash of Eastern's Electra into Boston Harbor. It involves,
as did Pearson, the Massachusetts statute that limits liability for
wrongful death to $20,000. Some fourteen States have such unjust
statutes.
Indeed, states that don't have statutory monetary limits have other
outrageous provisions, e.g. as to burden of proof Dyin v. Gordon, or
refusing to allow the next of kin of a childless couple to sue unless the
relative be "dependent" Long v. Pan American World Airways, Inc.
These statutory provisions are for another age and generation, yet
under the dead hand of Erie and Klaxon, they bind United States
district courts. If an airplane or automobile wrongfully kills a person,
his estate should have a cause of action whether he was a breeder or
nonbreeder and the evidence rules should be fair and just. In addition,
because it was a maritime tort, we have the question as to what law
admiralty is to apply and whether admiralty jurisdiction can be
evaded by bringing the action on the law side of the federal court in
diversity. The Supreme Court's denial of certiorari in this case affects
the life and limb of every American citizen, high and low. Here is a
real honest to God lawsuit that the Court should hear and decide, not
duck. By denial of review, the Court evades its responsibility as it did
previously in denying cert in Pearson and Weinstein and refraining
from telling Judge Van Dusen how to charge the jury in Barrack. It is
Richards v. American Airlines, all over again. Apply whatever law
you want, but don't bother us.
Yet, let a thrice convicted felon appeal a denial of habeas corpus
and what does the Court do? Having made up its mind not to do the
work the Constitution directs- diversity- federal question- admiralty
-the Court reaches for criminal cases it would not have time to take if
it did its duty and heard these other cases that raise points of common
law.
Of course, Eastern's Electra that fell into Boston Harbor is not the
first plane to fall into the water. Nor will it be the last. Eastern put a
plane into Lake Pontchartrain in Louisiana and not long ago United
put a Boeing 727 into Lake Michigan. Three cases are pending
against United as a result of this Lake Michigan crash.
1969]
"THE" TRUE NATIONAL COMMON LA W
In Harris v. United Air Lines, Inc.6 ' it was held that recovery was
limited to $30,000 under the wrongful death statute of Illinois.
District Judge Hanson in so deciding relied on Chief Judge Hastie's
opinion of March 30, 1967. In so holding that Iowa's wrongful death
statutes were inapplicable, Judge Hanson rejected contrary New York
cases arising out of the same accident, namely Thomas v. United
3
Airlines Inc.,' and Zabor v. United Air Lines Inc. "
After Judge Hanson wrote, the Appellate Division, First
Department, in Nev York unanimously reversed both the Thomas
and Zabor cases. Identical issues were also before the New York
Appellate Division, First Department, in Harris v. United Air Lines
Inc."4 and Rarey v. United Air Lines Inc."5 where it granted United's
motion "for partial summary judgment dismissing all claims on
behalf of each plaintiff in excess of the $30,000 limitation imposed by
the Illinois Wrongful Death Statute."' 66
However, the Appellate Division, First Department in New York,
relied as Judge Hanson had ow the unanimous panel opinion of Chief
Judge Hastie which the Third Circuit recalled on June 28, 1968 when
it entered judgment for the plaintiff pursuant to the Court's en banc
opinion of that date. After Judge Hanson's decision, the Harris action
there (Civil No. 7-1859-C2) was dismissed without prejudice on
October 19, 1967 and the claim for that plaintiff is now being asserted
only in his New York State action.
Meanwhile, since the en banc decision on June 28, 1968, both the
Harris and Thomas, cases have been certified by the Appellate
Division, to the Court of Appeals.117 Apparently, the Rarey case has
also been certified by the Appellate Division, and at this writing the
Clerk of the Court of Appeals of the State of New York estimates all
three cases will be argued in February, 1969.
Citing these developments, counsel for plaintiff in their brief in
opposition to the petition for certiorari confidently predict that the
New York Court of Appeals will allow recovery and follow its
"contacts" theory of Babcock v. Jackson.' This, plaintiff argues,
will result in reversal of the decisions in Harris, Thomas and Rarey,
161.
162.
163.
164.
165.
166.
167.
168.
275 F. Supp. 431 (S.D. Iowa 1967).
54 Misc. 2d 540, 281 N.Y.S.2d 495 (Sup. Ct. 1967).
30 App. Div.2d 32, 290 N.Y.S.2d 753 (Sup. Ct. 1968).
30 App. Div.2d 32, 290 N.Y.S.2d 757 (Sup. Ct. 1968).
30 App. Div.2d 32, 290 N.Y.S.2d 757 (Sup. Ct. 1968).
Id. at 32, 290 N.Y.S.2d at 758.
160 N.Y.L.J. 2, 11 (1968).
12 N.Y.2d 473, 191 N.E.2d 279. 240 N.Y.S.2d 743 (1963).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
making the results there consistent with the decision of the court en
banc in Eastern Air Lines v. Scott. Counsel may be right, but the
need for the Supreme Court of the United States to review the
questions presented ,remains as acute as ever. What is wrong here is
what Chief Judge Hastie so clearly pointed out in both his panel
opinion and his en banc dissent.
Are we to leave the determination of Choice of Law to the whim
and fancy of state courts in both diversity and admiralty? What law
must admiralty apply to maritime torts in state waters? It is clear
now from Clearfield, Geist, Lincoln Mills, and the many other cases
that Professor Alfred Hill of Columbia Law School cites in his
excellent series of articles'69 that Erie v. Tompkins has been reversed
at least in federal question cases and every day the courts are calling a
controversy one involving federal question that yesterday they called
diversity of citizenship.
The constitutional grant of judicial power in diversity and
admiralty is as clear as in federal question. And for good reason.
Diversity and admiralty cases invariably involve the law of
nations-conflicts of law international and domestic. In deciding the
law applicable in admiralty and diversity, our federal courts should be
free to apply a true National Common Law and select one national
uniform law free from compliance with state law, statutory or
judicial.
Only by allowing the federal courts to select the conflicts of law
rule applicable can we hope to achieve any degree of national
uniformity. Even Henry Friendly who purports to write in praise of
Brandeis' decision in Erie (he really doesn't), urges that Congress
enact the Uniform Commercial Code and he declares that "[t]he
multi-state character of many suits by passengers against interstate
carriers for injury or death calls for an expansion of federal law that
is easily achievable.'1 7 To demonstrate the need, Henry Friendly
(formerly Counsel for Pan-American) puts to us this so common
airplane crash case:
An airplane crash in State A may involve claims of negligent
manufacture in State B (or if different parts of the aircraft are alleged to
have been defective, in States B, C and D), of negligent inspection by the
169. Hill, The Law Making Authority oJ the Federal Courts: Constitutional Preemption, 67
COLUM. L. REv. 1024 (1967); Hill, The Inadequate State Ground, 65 COLuM. L. REV. 943
(1965); Hill, The Erie Doctrine and the Constitution, 53 Nw. U.L. REv. 427 (1958).
170. Friendly, supra note I, at 88.
1969]
"THE" TRUE NATIONAL COMMON LA W
airline in State E and of the pilot's failure in State F to take corrective
action when that was still possible.'
Then Henry proposes this:
Since the passengers usually come from different States and the airline
is suable in many, the actions are likely to be in a variety of forums,
possibly with diverse choice of law rules; a considerable part of the
alphabet may thus be implicated . . . A federal statute declaring a rule
of liability to passengers on the part of interstate carriers-and the rule
would not have to be stated by Congress in any detail-would end all
these 'witty diversities.' Perhaps, in order to avoid swamping the federal
courts with personal injury suits, such a statute should be limited to
airplane accidents, where the multi-state problems appear to be more
acute than for land carriers. At the very least there ought to be a federal
act as to deaths of passengers caused by interstate carriers, thereby
rescuing the courts from problems as to limitations on recovery under
some State death acts that have recently plagued them and are far from
solved and avoiding the seeming injustice that the estate of one passenger
might recover without limit whereas that of the man next to him could get
172
only a small sum.
In this short passage, tucked far away at the end of his Cardozo
Lecture, Henry Friendly enters the church and, in principle at least,
agrees with me as to what the law should b with respect to airplane
crashes. However, as you might expect of a boy who went to law
school in the twenties, he seems to think there is some need for
commerce to be "interstate" and something wrong about a federal
court's handling a personal injury suit. Our federal district courts still
have about 25% of their calendars occupied with diversity cases so it
is difficult to believe they would be swamped if they handled airplane
crash cases exclusively.
If they took such jurisdiction as Henry points out in footnote 183,
"inaddition to providing uniform rules of substantive law," the Federal
Rules and statutes could be changed to, "permit removal of State
court suits, thereby making available the possibilities of transfer
afforded by federal law and thus permitting consolidation in a single
forum of all actions growing out of the same accident.''3
What Henry does not say is that the Supreme Court of the United
74
States could and should have done this in Van Dusen v. Barrack,
171. Id.
172. Id. at 126-27 (emphasis added).
173. Id. at 108. For this statement Henry Friendly graciously cites my Piercing Pearson, 29
J. AIR. L. & CoMt. 95, 113 (1963).
174. 376 U.S. 612 (1964).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
reversing Popkin v. Eastern Air Lines Inc. 7 5 also reversed in Barrack
v. Van Dusen.'7 6
As I mentioned earlier in this paper and at length in "Piercing
Pearson," the argument of the Solicitor General to anchor all airplane
accident cases in one court under one judge at the scene of the
accident is unanswerable. The Court was shockingly neglectful of its
public responsibility in deciding Van Dusen v. Barrack in the way it
did. It added confusion to what was already chaos.
Of course, Henry would have you believe that to accomplish this
result we would have to have the Congress pass a statute. Once
immediately after I left practice to become a teacher I approved a
student note that argued a technical decision of Frankfurter's with
respect to federal venue was wrong because the way to correct the
technicality was to go to Congress and get a statute passed. It was a
"boner."
In certain civil rights cases, Mr. Justice Black has said the same
thing. For instance, he voted to convict in the sit-in cases but after the
Civil Rights bill was passed and service at restaurants to all person
required by Congress, he voted to uphold the constitutionality of the
law.
To be constitutional, whether the law be one as to "Commerce
among the States" or as to "Privileges and Immunities," "Equal
Protection" or "Due Process," the Congress must have power to
legislate in the area. Take Brown v. Board of Education or Baker v.
Carr which are cases where the Court acted under the command of
the Constitution to enforce school integration and to outlaw state
election gerrymanders. We did not need a statute for the Court to
decide either of these cases and we do not need a congressional statute
now for the Court to reverse Erie v. Tompkins and resume its
constitutional judicial power in diversity cases.
Asking Congress to pass a statute for this area is a kiss of death to
a desirable reform. As Roscoe Pound pointed out long ago, there is
no sex or political appeal in this area for the busy Senator or
Congressman. 77 What is needed is for the federal courts, especially
the Supreme Court to reassert Choice of Law jurisdiction which they
so shamefully shed in Erie v. Tompkins.
It must be that Henry Friendly believes it would be exercising an
175. 204 F. Supp. 426 (L.D. Pa. 1962).
176. 309 F.2d 953 (3d Cir. 1962).
177. See Keeffe, supra note 7.
1969]
"THE" TRUE NATIONAL COMMON LA W
unconstitutional power for the Court to apply a National or Federal
Common Law in airplane crash cases. But he cannot be very sure of
this because he says:
If the difficulties in cases like these [airplane crashes, Kilberg. Pearson.
Van Dusen tv. Barrack et al.] are charged to Erie, [and why not?], at
least a partial answer is that the pre-Erie regime would not have helped
when suit was brought in State courts, and that in diversity cases in the
federal courts it-would have alleviated the problems by glossing over
them. To whatever extent Erie has increased the trouble, its lineal
descendent, specialized federal common law, provides a solvent.'1
Here again Henry makes the mistake Brandeis made in assuming
that the state courts under Swift v. Tyson did not change and adopt
the Federal Common Law rule. Gilhooley's research and Yntema's
indicate that by and large the states followed what the Supreme Court
said should be the law. Nor do I believe that Swift v. Tyson or other
"general law" cases glossed over the problems. The federal courts
were very discreet and respected the state decisions when just. That's
why Brandeis can count only 1,000 cases in 100 years.
But the fact remains that if it were not for Erie, there would be no
need to consider the desirability of a special statute for airplane
crashes. It is Erie and Klaxon that chain our federal courts today in
diversity cases to the rule of the forum, right or wrong. Really Henry
Friendly asks that we repeal Erie only for airplane cases and the
Commercial Code.
Yet as we have seen there were three grounds for Brandeis' decision
in Erie: First, that Swift v. Tyson represented an unconstitutional
exercise of judicial power when it did not which indeed is specifically
held in Hannah v. Plumer, Second, that the hitherto undiscovered
draft of Section 34 of the original Judiciary Act of 1789 indicated
that Oliver Ellsworth, the draftsman, intended to chain federal courts
to state statutory and decisional law when a correct reading of the
draft indicates the reverse was true; and, Third, that experience under
Swift v. Tyson was bad, and a national uniform law was not obtained
and shopping for a favorable forum was encouraged whereas careful
research of the cases cited by Brandeis and Frankfurter indicates the
reverse was true and there is today the worst kind of forum shopping
in airplane crash cases, especially those arising out of the crash of
Eastern's Electra into Boston Harbor.
Whenever the Supreme Court makes a bad decision, in the wake of
178. Friendly, supra note I, at 89 (emphasis added).
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
it come many, many more troubles. As Eddie Morgan was wont to
say of the Deadman's Statute, you can tell how bad the thing is by
the number and quality of the court decisions written with respect to
it, usually to honor the statute or decision more in the breach than in
the observance. Regrettably this has been true in the case of Erie. The
district judge one way or another tries to evade the problem. This of
course not only confuses but leads to even more serious abuses.
As Henry Friendly concedes, it is an injustice to allow Pearson of
New York to recover $130,000 for his life and hold the passenger
killed in the next seat to him to the limit of $15,000 in the
Massachusetts statute. It is not only unjust but in the words of Stone
and Brandeis it is the exercise of an unconstitutional power. It
violates Article III of the Constitution in that sitting in diversity the
federal court does not exercise the judicial power granted to it. It
violates the full faith and credit clause which intends the federal court
to make a Choice of Law (domestic or foreign) when citizens of
different States or citizens and aliens are in controversy.
The ruling allowing a New Yorker's estate to recover and holding
a New Jersey citizen's estate to the statutory limit takes his property
without just compensation in violation of the fifth amendment
subsidizing the cost of Northeastern's airline and in addition denies
him the privileges and immunities of an American citizen, equal
protection and due process of law under the fourteenth amendment.
If denial of certiorari meant approval of the decision of the Third
Circuit in Scott, we might be able to sit back and rejoice that at least
as respects maritime torts, admiralty will allow recovery regardless of
any limitation of liability in a state statute. But alas, we know that no
implication of approval or disapproval can be drawn from the
granting or denial of a writ of certiorari. In other words we are back
where we started and complete confusion obtains now as it has ever
since the Court decided Erie v. Tompkins.
Writing before Scott my friend William J. Junkerman of the New
York bar could say:
Complete confusion now exists with respect to what choice of law rule
is to be applied in an action to recover for wrongful death as a result of
a maritime tort which relies for the basis of recovery upon a State
wrongful death act. The decisions are in direct conflict. Serious doubts
are also unanswered with respect to a State's adoption of a conflicting
choice of law rule vis-a-vis the general maritime law choice of law rule
and what effect the traditional overriding national interest in the
uniformity of federal maritime law will have on State action.'
179. Junkerman, Aerial Maritime Torts Seas oJ Conjusion. 3 -ORU\I 177 (1968).
1969]
"THE" TRUE NATIONAL COMMON LA W
Regardless of what the Court of Appeals of the State of New York
decides in the United Air Lines cases pending there, there is no hope,
Bill Junkerman, of anything but confusion and more confusion until
the Supreme Court of the United States stops stuffing these cases
under the rug and takes certiorari and briefs and hears oral argument.
Of course, the Choice of Law in admiralty presents special
problems. Until the Jones Act and the Death on the High Seas Act
[DOHSA] were passed in 1920, admiralty let the tort die with the
person. The Jones Act applies only to seamen and DOHSA applies
only on the high seas, beyond a marine league from shore. I said all I
could say about this problem in a column called "DOHSA" 52
American Bar Association Journal 289 (March, 1966) and urged the
Court (as did Judge John Minor Wisdom of the Fifth Circuit) to take
certiorari in Kenny v. Trinidad Corp."' The Court denied certiorari.
What has been overlooked in DOHSA is that there is a section of
the statute that preserves to litigants their state law causes of action
so that if the state statute has a longer statute of limitations or other
beneficial provisions that cause would appear to be open either at law
or in admiralty as United States District Judge John F. Dooling, Jr.
8'
held in Safir v. Compagnie Generale Transatlantique.'
To the extent that Dean Thomas 0. White in his article A Deadlv
Conflict In The AdiniraltI Law' 2 argues for a uniform conflicts rule
in both diversity and admiralty I can agree with him. But I fear Dean
White may, perhaps, not to be so alarmed about Erie v. Tompkins as
I am and aware of its unjust discriminatory applications.
The time has come for a true National Common Law and for the
Court to praise Swift v. Tyson and damn Erie v. Tompkins as the
worst decision of this century, a reversion to states' rights and what
Bill Crosskey calls the 100 years that the Court misread the
commerce clause.
180. 349 F.2d 832 (5th Cir. 1965).
181. 241 F. Supp. 501 (E.D.N.Y. 1965).
182. 29 U. Pitt. L. Riv. 655 (1968).