My next two posts are on a massive and wide-ranging article by Ernest Young (brought to my attention in Larry Solum’s blog) in which he responds to my reading of Erie. In this post I wanted to discuss just how much Young and I agree on the deep structure of the constitutional argument in Erie (something that one might not recognize from reading Young’s article).
As I put it in Erie’s Suppressed Premise, the problem with Brandeis’s reasoning in Erie is the following: Brandeis's opinion gives us no reason to think that the extent to which federal courts are obligated to follow state supreme court decisions concerning the common law prevailing in a state is up to the state’s officials themselves. If it is, whether a federal court should adopt Erie (defer to state supreme court decisions) or Swift (come to one’s own conclusion about the common law prevailing in the state) varies depending on the state whose law the federal court is interpreting. Swift and Erie were both wrong, because they each take a categorical approach to what was a contingent question of state law.
The only way to rescue Brandeis’s reading in Erie is to add a premise that limits state officials’ power to control federal courts’ obligations to defer to state supreme court decisions. I argue that the missing premise is an anti-discrimination principle similar to that offered by the Supreme Court in Thomas v. Washington Gas & Light Co., 448 U.S. 261 (1980). In Thomas, a majority of the Supreme Court agreed that Virginia officials cannot vary the preclusive effect of Virginia judgments on the basis of whether the effect is felt in Virginia or sister state courts. The Full Faith and Credit Clause does not tell sister state courts to give Virginia judgments the preclusive effect that Virginia officials want the judgments to have. It instead mandates that the sister state courts give Virginia judgments the same preclusive effect that the judgments have in Virginia state courts. This obligation is one that Virginia officials themselves cannot override. The same point applies to federal courts’ obligations under the Full Faith and Credit Statute. The statute limits Virginia officials’ ability to vary federal courts’ obligations to respect Virginia judgments. Virginia officials can control federal courts’ obligations only indirectly, by controlling the effect Virginia judgments have in Virginia state courts.'
A comparable limitation, I argue, applies to the effect of a state supreme court’s interpretation of the state’s laws, including its common law. The Full Faith and Credit Clause compels sister state courts to give the Virginia Supreme Court’s interpretation of Virginia common law the same effect that they have in Virginia state courts. This obligation is one that Virginia officials cannot override. And implicit within Erie is the principle that Virginia Supreme Court interpretations of Virginia common law must be given the same effect in federal courts that they have in Virginia state courts.
What is Young’s view on this question? As he puts it, “I do not think that Erie leaves the federal courts obligation of deference up to the state courts [or other state officials].” (p. 110) I agree – indeed, that is the point of my article. Young and I disagree only about the source of this limitation on state power. I use a non-discrimination principle derivable from Thomas. Young uses principles derived from administrative law.
I should mention that there is a good deal with which I disagree (and agree) in other parts of Young’s article. But I wanted to make it clear just how similar our positions are on the fundamental question of state officials’ power to control federal courts’ duty to defer to state supreme court decisions concerning state law.
Next up: Georgia's Swiftian approach to the common law.