In his article defending Erie, Ernest Young questions my conclusion (in Erie’s Suppressed Premise) that Georgia is still committed to a Swiftian view of the common law. Since I spoke about Georgia’s Swiftian approach in class in Conflicts, this also is an opportunity say a bit more about the topic for my students.
But does Georgia have a Swiftian view of its common law? The evidence that it does is stronger than Young suggests.
One of Young’s arguments appeals to the fact that Georgia has adopted the UCC, which, he says, “would be unnecessary if Swift’s general commercial law were still operative.” (p. 110) I must confess that I fail to see how this argument is supposed to work. Why would passing the UCC be unnecessary for a state that believes in the existence of the general commercial law? One reason such a state might pass the UCC is because it wishes to abrogate the general commercial law within its borders. States passed statutes concerning areas covered by the general common law back in the days of Swift v. Tyson for just that reason.
Furthermore, even when the content of the UCC overlaps with the preexisting general commercial law, a state committed to Swift would consider the passage of the statute to have an important effect on sister state and federal courts’ obligations. Prior to the passage of the statute, federal and sister state courts would have no obligation to defer to the state supreme court’s decisions concerning the general commercial law prevailing in the state. Once the matter is governed by statute they would.
What is more, Young himself admits that Georgia held a Swiftian view of the general common law in 1929, when Slaton v. Hall, 148 S.E. 741 (Ga. 1929), was decided. But in 1924 the Georgia legislature saw fit to pass the Uniform Negotiable Instruments Law, a predecessor to Article 3 of the UCC. Was the Georgia legislature doing something unnecessary?
But there is a more general problem with Young’s argument. As he puts it, Georgia is not committed to Swift because “Georgia seems to behave pretty much like any other state with regard to its common law.” (109-10) But one cannot tell from the way that Georgia state courts treat Georgia common law cases whether they are committed to a Swiftian view of the common law or not. Georgia state courts simply have no occasion to opine about whether federal and sister state courts have a duty to defer to Georgia state courts concerning the content of the common law in the state. The matter could be certified to the Georgia Supreme Court, but no one has ever done so. The only way to get some indirect evidence about what Georgia courts think is to see how they treat the common law of sister states. Young speaks somewhat dismissively of “the few odd conflicts cases Green cites”(p. 109). But those cases are the only ones that have any chance of revealing what Georgia’s view of the matter is.
In these cases the cause of action arises in a sister state, no statute of the sister state applies, and Georgia state courts choose to apply the common law as interpreted by Georgia state courts. Young claims that these are best understood as cases in which Georgia courts have decided to apply Georgia common law (p. 109 n. 536). But only a small number describe the matter that way. Even relatively recent cases usually describe what is applied as “the common law as interpreted by the courts of Georgia and not of [the sister state].” Calhoun v. Cullum's Lumber Mill, Inc., 545 S.E.2d 41, 45 (Ga.App., 2001). In addition, if Georgia common law really applied in such cases, Georgia’s choice-of-law rule would be 1) bizarre, 2) clearly unconstitutional and 3) directly contrary to the choice-of-law rules accepted by Georgia state courts.
Georgia’s rule would be bizarre, because Georgia courts would be saying that Georgia common law applies in the sister state, but this common law can be supplanted by a sister state statute. If Georgia saw fit to extend Georgia common law to the sister state, why not Georgia statutes? Unlike the Swiftian view of the common law, such a choice-of-law approach is absolutely unprecedented.
Georgia’s rule would be clearly unconstitutional, because it would mean that Georgia common law applies everywhere in the United States (indeed, everywhere in the world) whenever a matter is not governed by a statute of the jurisdiction in which cause of action arose. There is no limitation in Georgia’s approach on the basis of whether Georgia has the sort of contacts that would make the application of its law permissible under Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981).
Georgia’s rule would be directly contrary to the choice-of-law rules accepted by Georgia state courts, because such courts have said that the law, even the common law, of the place of the harm applies for torts. Risdon Enterprises v. Colemill Enterprises, 324 S.E.2d 738, 741 (Ga. Ct. App. 1984).
I think Young finds the idea that Georgia is committed to Swift implausible because he has a distorted view of Swift itself. Here is how he puts it: “[T]he notion that the general common law retains some sort of Platonic existence irrespective of the decisions of the courts in all fifty states is so far from contemporary understandings of jurisprudence that one would want to see a pretty clear statement from the modern Georgia courts indicating that this remains their view.” First of all, under the reading that I have offered, the general common law is state law. It is binding in a state’s borders only as a result of the decisions of state’s officials. It is not binding, for example, in Louisiana, because Louisiana officials did not choose a common law system for the state.
What is more, even for a state that has adopted a common law system, its common law will not be Swiftian if its officials demand that sister state and federal courts abide by the decisions of the state’s supreme court concerning the content of that law. The problem—and this cannot be emphasized enough—is that the courts of a state have no occasion to express a view one way or another on the matter. All Georgia adopting a Swiftian approach concerning the common law of sister states means is that Georgia state courts assume sister state courts are Swiftian in the absence of contrary evidence. This is not crazy.
But, to repeat, in the end it is federal constitutional law—not state law—that explains why federal and sister state courts are bound to defer to a state supreme court concerning the content of the common law prevailing in the state. On that matter, Young and I are in agreement.