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Erie v. Tompkins, 304 U.S. 64; 367 (1938)

Erie v. Tompkins, 304 U.S. 64; 367 (1938)

  • 1938
  • Category: Personal injury; civil procedure
  • Holding: For the defendant/petitioner.
  • 304 US 64; 367


This case started as a mere personal injury trial but later blossomed into an important and even historic Supreme Court case. Its origins were simple enough: a short walk home. Harry Tompkins was walking along a railroad tracks one late night in Pennsylvania when a railcar struck him coming from the opposite direction. He suffered serious injuries. His arm was even crushed under the weight of the train.

He sued the railroad company in the federal court of New York. In fact, this was a strategic decision because the plaintiff predicted that federal courts would be more hospitable than state courts in either New York or Pennsylvania. True to form and following legal precedent of that time, the federal court relied on federal common law instead of New York or Pennsylvania state common law in awarding the plaintiff Tompkins a victory. Thus, the plaintiff guessed wisely. After the railroad company appealed to the Second Circuit Court of Appeals, that court affirmed the district court’s ruling. Having run out of all other options, the defendant appealed to the Supreme Court and was actually given certiorari.


With federal diversity actions, and apart from issues involving Constitutional or federal law, must federal courts use state common law as well as state statutory law?


The heart of the analysis of this case begins with a case from 1842: Swift vs. Tyson. In that case, the Supreme Court was interpreting the Rules of Decision Act (originally the Judiciary Act of 1789) when it said that federal courts could issue new law if the state had not spoken on the subject. Ostensibly, the majority in Swift thought this would create a consensus among federal common law but it actually made matters worse. Additionally, it greatly increased the amount of forum shopping across the country. In total, the majority in Erie believed that Swift represented an unacceptable overreach by the federal government. First, the Constitution does not give federal courts the ability to make substantive rules applicable to the states. There is no federal common law. Second, the Constitution also does not give this same power to the Congress. The Court believed to say otherwise would erode the tenth Amendment to the Constitution and the powers reserved to the states. Thus, in federal diversity actions, courts must abide by state statutory law and state common law.


Yes. In federal diversity actions, and apart from issues involving Constitutional or Federal Law, Federal Courts must use state common law as well as state statutory law.


For the majority: Brandeis; Hughes; Black; Black; Stone; Roberts
In concurrence: Reed
In dissent: Butler; McReynolds


This case stands as one of the most important cases of all time. It greatly reduced the ability of plaintiffs to forum shop their litigation around the country and clearly delineated the delicate line between federal and state powers.