Confessions of a Supreme Court


…but that was 1938, and unfortunately they didn’t stay long.

While home, they confessed that “the law to be applied in any case is the law of the State.”

They even admitted the obvious:  “There is no federal general common law.”

Maybe they’ll come home again some day, and write more like this.

“I am aware that what has been termed the general law of the country—which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject—has been often advanced in judicial opinions of this court to control a conflicting law of a State.  I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views.  And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine.  But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States…”  Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).