What if Erie had nothing to do with the status of customary international law in U.S. law?

That’s an argument that my colleague and friend, Craig Green, here at Temple is making with his work, Repressing Erie’s Myth, which will appear in the California Law Review next year (you can download a copy of it in draft form here). For years, the conventional wisdom suggested that customary international law operated as part of U.S. federal common law, or as Justice Gray put it in the Paquette Habana, “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.” Although Philip Jessup initially questioned whether Erie would undermine this position (see 33 AJIL 740, 742 (1939)), luminaries such as Lou Henkin and the Restatement (Third) on the Foreign Relations Law of the United States maintained that Erie left open a role for customary international law as part of U.S. law. As many Opinio Juris readers will know, that position came under close scrutiny ten years ago when Curt Bradley and Jack Goldsmith penned their seminal article, Customary International Law as Federal Common Law: A Critique of the Modern Position, which suggested customary international law’s status as federal common law does not survive Erie absent authorization from the political branches to treat it as such. Dozens of articles–launching a whole “new sovereigntist” movement in U.S. foreign relations law–followed, not to mention a major Supreme Court decision in Sosa v. Alvarez-Machain. Indeed, last year, we here at Opinio Juris hosted a workshop on Professors Bradley and Goldsmith’s latest work with David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.”



Certainly, Green is not the first to respond to the new sovereigntist position, but for the most part the prior arguments were narrow ones, arguing, for example, that Erie left open enclaves of federal common law that should include customary international law. Green’s work, however, has much loftier ambitions; indeed, his critique of the new sovereigntist position is only part of a larger critique of how scholars and jurists have expanded Erie‘s holding. Here’s a taste from the introduction:

[T]here are at least three decisions that stand as cultural pillars of our legal architecture: Marbury v. Madison, Brown v. Board of Education, and Erie Railroad v. Tompkins. Though it’s unclear just what separates “iconic cases” from others, every lawyer knows these three by name and has some idea what they mean. . . These iconic cases are modern orthodoxies, which inspire debate but rarely dissent, and their privileged status makes disputes over their meaning perennially important. This Article seeks to undermine Erie’s iconic prominence. Erie’s bare holding—that federal diversity cases apply state substantive law—is established beyond boredom, and this Article will not dispute it. My quarrel is with Erie’s “myth,” its claim to be a foundation of United States law. Although Erie’s myth has been retold for generations—by such jurists as Brandeis, Friendly, and John Hart Ely—it stands on flawed premises.

It is in attacking Erie’s myths that Green’s work launches a major challenge (or rebuttal) to the new sovereigntist positions. Here’s more from Green’s abstract:

[Erie] has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts.

My goal is to limit exaggerations of Erie’s importance and forestall resultant threats to judicial power. This critique of Erie’s myth has three parts: First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism. Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth’s broadest consequences. Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson’s account of executive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue.

Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case’s shadows.

I highly recommend this piece. It’s the kind of provocative, careful scholarship that’s sure to warrant attention from fed court and foreign relations scholars alike. It will be interesting to see how Professors Bradley, Goldsmith or Moore respond. I’m also curious to hear reader reactions–do you find the explanation of the various “myths” that surround Erie compelling? And, if so, where does that leave the new sovereigntist position, let alone customary international law as part of U.S. law?