Reining in the Federal Judiciary: Louis D. Brandeis and Erie v. Tompkins

Edward A. Purcell, Jr. Brandeis and the Progressive Constitution: Erie, the Judicial Power and the Politics of the Federal Courts in Twentieth-Century America. New Haven: Yale University Press, 2000. x + 417 pp. Notes and index. $37.50.

Edward Purcell, Jr., a professor at New York Law School, has written an in-depth historical study of a landmark Supreme Court decision known as Erie Railroad Company v. Tompkins. Although this decision attracted little notice outside the legal profession when the Court issued it on April 25, 1938, it was rightly described by Justice Hugo Black as "one of the most important cases at law in American history." ¹ Associate Justice Louis D. Brandeis wrote the opinion for the Court in the Erie case, and it is Brandeis's role and reasoning in the Erie case that are the chief concerns of Purcell's fine book. Purcell's most important argument is that Brandeis's opinion in Erie cannot be fully understood unless it is seen as part of his quintessentially Progressive quest to rein in the power of the federal courts. Purcell uses a large array of primary and secondary sources to make his case persuasively, and in so doing helps clarify a Supreme Court ruling as confusing as it was important.

The facts of the Erie case were fairly simple. Harry Tompkins was walking along the right of way of the Erie Railroad around 2:00 a.m. on July 28, 1934 in Hughestown, Pennsylvania. Tompkins was headed home and had only a short way to go, but a train came along and he looked up at it too late to avert an accident. Protruding from one of the cars was a black object that Tompkins said "looked like a door" (p. 95). It struck Tompkins and threw him under the train's passing wheels. Neighbors found him unconscious, lying against a rail. His severed right arm lay in-between the tracks. After he was taken to the hospital, doctors amputated the rest of Tompkins's right arm. Soon thereafter, Harry Tompkins sued the Erie Railroad Company to recover money damages for his injury.

The key legal question raised by Tompkins's suit was whether Pennsylvania state law or general federal common law applied in deciding if the Erie Railroad Company was liable for Tompkins's injury. Under at least one view of Pennsylvania law, the courts of that state would have regarded Tompkins as a trespasser and held that the railroad was not liable unless it had engaged in wanton or willful misconduct in leaving open the door that struck Tompkins. Under the general federal law, Tompkins would have been viewed as having the railroad's permission to use the right of way for the purpose of reaching his home. In legal terminology, Tompkins (according to the general federal common law) would have been a "licensee" rather than a trespasser, and the railroad would have been liable for his injury if it had been merely negligent. ²

Seeking to make his claim under the protection of the more advantageous federal law, Tompkins's lawyer sued the Erie Railroad Company in its home state of New York. Because the case involved a plaintiff (Tompkins) from Pennsylvania and a defendant (Erie) from New York, Tompkins's lawyer could file his suit in a New York federal court. Under the law as the Supreme Court had earlier interpreted it (in a major ruling in 1842 known as Swift v. Tyson), federal courts could hear such "diversity suits" between parties from different states and apply general federal common law in deciding them. The federal court applied the negligence standard of liability and Tompkins won his suit, with a judgment in his favor for $30,000. Erie's lawyers appealed and lost again in the Second Circuit Court of Appeals, which upheld Tompkins's award.

Erie's legal team appealed once more...