Dissent in Erie Railroad Co. v. Tompkins
304 U.S. 64 (1938) (1938) · Supreme Court of the United States
Erie overruled Swift v. Tyson and held that there is no federal general common law; federal courts sitting in diversity must apply the substantive law of the state in which they sit. The decision transformed the relationship between federal and state courts and remains one of the most important federalism decisions in American law.
What was the dissent in Erie Railroad Co. v. Tompkins?
Justice Butler dissented, joined by Justice McReynolds, arguing that the question of overruling Swift had not been briefed or argued by the parties and that the doctrine of stare decisis counseled against overturning nearly a century of precedent without full adversarial consideration.
Source: Read Erie Railroad Co. v. Tompkins on Google Scholar
Case Overview
Facts
Harry Tompkins was walking along a railroad right-of-way in Hughestown, Pennsylvania, when he was struck by a door protruding from a passing Erie Railroad train. Tompkins was a citizen of Pennsylvania, and Erie Railroad was a New York corporation. Tompkins filed suit in the Southern District of New York. Under Pennsylvania common law, Tompkins would have been considered a trespasser owed only a duty not to willfully or wantonly injure him. Under the federal general common law as interpreted by the court under Swift v. Tyson, Tompkins would be owed a higher duty of ordinary care.
Majority Holding
The Supreme Court overruled Swift v. Tyson and held that there is no federal general common law. Federal courts sitting in diversity must apply the substantive law of the state, including state decisional law, not merely state statutes. The case was remanded for application of Pennsylvania law.
Majority Reasoning
Justice Brandeis reasoned that Swift v. Tyson had proven unworkable in practice, leading to forum shopping and inequitable administration of the law. Under Swift, noncitizens could choose federal court to gain the benefit of more favorable federal common law, creating discrimination against citizens of the state who were bound by state law in state court. Brandeis argued that the Constitution does not grant Congress or federal courts power to declare substantive rules of common law applicable to diversity cases. The Rules of Decision Act requires federal courts to apply state law as their rules of decision except where federal law governs. The persistence of Swift had prevented uniformity and encouraged manipulation of jurisdiction.
The Dissenting Opinion
Justice Butler dissented, joined by Justice McReynolds, arguing that the question of overruling Swift had not been briefed or argued by the parties and that the doctrine of stare decisis counseled against overturning nearly a century of precedent without full adversarial consideration.
Key Quotes
“There is no federal general common law.”
“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the State.”
“Swift v. Tyson introduced grave discrimination by non-citizens against citizens. It made rights enjoyed under the unwritten 'law' vary according to whether enforcement was sought in the state or in the federal court.”
Impact and Legacy
Erie is one of the most consequential decisions in American civil procedure and federalism. It eliminated forum shopping based on the availability of more favorable federal common law and ensured that the outcome of litigation would not depend on whether the case was heard in state or federal court. The Erie doctrine generated a complex body of law about what constitutes 'substantive' versus 'procedural' law, leading to important follow-up cases like Guaranty Trust, Byrd, and Hanna v. Plumer.
Exam Relevance
Erie is arguably the most frequently tested civil procedure case on law school exams. Students must be able to apply the Erie doctrine to determine whether state or federal law governs a particular issue in a diversity case. Exam questions often present borderline substantive/procedural issues and require students to work through the Erie analysis, including the Hanna v. Plumer framework for cases involving Federal Rules of Civil Procedure.
Study Tips
- Master the core rule: in diversity cases, federal courts apply state substantive law and federal procedural law.
- Understand the twin aims of Erie: discouraging forum shopping and avoiding inequitable administration of the law.
- Be able to articulate the Erie analysis step by step: is there a Federal Rule on point (Hanna v. Plumer)? If not, does the issue involve substance or procedure (outcome-determinative test, balance of interests)?
- Connect Erie to Hanna v. Plumer and Shady Grove, which refine the analysis for situations where a Federal Rule conflicts with state law.
Read the Full Case Analysis
View the complete brief for Erie Railroad Co. v. Tompkins including full reasoning, doctrine, and study resources.
More Civil Procedure Dissents
Pennoyer v. Neff
95 U.S. 714 (1878) (1878)
Justice Hunt dissented, arguing that the Oregon statute authorizing service by publication was a valid exercise of state legislative power and that the procedure followed was sufficient to confer jurisdiction over nonresidents with property in the state.
World-Wide Volkswagen Corp. v. Woodson
444 U.S. 286 (1980) (1980)
Justice Brennan dissented, arguing that the majority's approach was too restrictive and that the defendants placed their products into the stream of commerce knowing they might reach any state. He contended that when a product causes injury in a forum state, the interests of the state and the injured plaintiff should weigh heavily in the jurisdictional analysis.
Daimler AG v. Bauman
571 U.S. 117 (2014) (2014)
Justice Sotomayor concurred in the judgment but disagreed with the majority's 'at home' test. She argued that the majority's approach was too restrictive and that the Court should have resolved the case by holding that the exercise of jurisdiction would be unreasonable, rather than by narrowing the general jurisdiction test itself.
Bristol-Myers Squibb Co. v. Superior Court of California
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Justice Sotomayor dissented, arguing that BMS's extensive activities in California, combined with its nationwide marketing of Plavix, created sufficient contacts for specific jurisdiction. She warned that the decision would impede the efficient resolution of mass tort litigation by preventing plaintiffs from consolidating their claims in a single forum.
Ford Motor Co. v. Montana Eighth Judicial District Court
592 U.S. 351 (2021) (2021)
Justice Gorsuch concurred in the judgment but wrote separately, joined by Justice Thomas, questioning the majority's reliance on the 'relate to' language. He argued that the majority's approach was vague and suggested that the original understanding of the Fourteenth Amendment might support a broader basis for jurisdiction. Justice Barrett took no part in the decision.
Hanna v. Plumer
380 U.S. 460 (1965) (1965)
Justice Harlan concurred in the result but wrote separately to argue that the majority's analysis was too permissive. He believed the test should focus on whether the choice between the federal and state rule would substantially affect the primary decisions of parties — i.e., whether the federal rule would affect behavior outside the courtroom.