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Erie Railroad Co. v. Tompkins
Tom Kantas

1. What was the rule of decision?

According to Pennsylvania common law, people who use the pathways along the 
railroad are deemed trespassers.  The railroad, therefore, is not liable 
for injuries to undiscovered trespassers resulting from its negligence 
unless it is willful or wanton.

2. What sovereigns offered conflicting rules?

In diversity cases and on matters of general jurisprudence, Federal Courts 
have the authority to disregard the common of state and issue an 
independent judgment.  This power conflicts with the local state 
sovereign's authority to develop and enforce the common law pronounced by 
its highest court.  

3. How does forum-sovereign law come into play?

Bringing suit in Federal Court subjects any plaintiff to the possibility 
that accepted state common law cold be disregarded by the court should it 
find that the issue pertains to "general jurisprudence."  Plaintiffs 
valuing a certain level of certainty with respect to substantive law would 
be forced to bring suit in state court and risk possible removal rather 
than bring suit outright in Federal Court.  

4. Characterize Erie as a false conflict.

Neither the Congress nor the Pennsylvania legislature had enacted a 
specific rule concerning the status of individuals walking along rail road 
tracks.   Therefore, no conflicted existed either between two states or 
between Pennsylvania and Federal law.  

5. What was the choice of law rule asserted by the railroad?

Lex Loci Delicti

6. What is its source?

34 Federal Judiciary Act of September 24, 1789.

7. How does legislative history effect Justice Brandeis' analysis?

According to Justice Brandeis, the court erroneously interpreted the 
legislative statute in Swift.  Instead, the court could have looked at the 
original version of 34 and determined that federal courts, in diversity 
jurisdiction, should apply the law of the state.

8. Why do Brandeis and Story interpret the Rules of Decision Act 

Brandeis and Story interpret the Rules differently based on their 
respective notions of Federalism.  Specifically, their theories depend on 
what the meaning of the word "law" is.  Story gives greater discretion to 
Federal Judges in cases based on diversity.  In contrast, Brandeis would 
prefer to apply established state common law in diversity cases. 

9. How does constitutional power affect Brandeis' analysis?

The text of the Constitution does not give Federal Courts the authority to 
overrule state law based on the decision that the legal issue is a 
"general" one, i.e. "no clause in the Constitution purports to confer such 
a power upon the federal courts."

10. Does Congress lack the power to legislate with respect to commercial 

According to Brandeis, "Congress has not power to declare substantive rules 
of common law applicable in a State_be they commercial law or part of the 
law of torts."  Under the Commerce Clause in the Constitution, Congress 
should have the power to regulate commercial law if it affects the flow of 
interstate commerce.  

11. Why is it constitutional for federal courts apply Fed.R.Civ. 23.

Disclosing facts could constitute a procedural matter that does not affect 
the substantive elements of a claim.  This distinction may not undermine 
Brandeis' statement that there "is no federal general common law."

12. Why was it constitutional for federal courts to develop the 
"exclusionary rule"? 

Brandeis perceives Erie as an issue of Federalism: " in applying the 
doctrine this Court and the lower courts have invaded the rights which in 
our opinion are reserved by the Constitution to the several states."  The 
exclusionary rule, in contrast, concerns the 4th Amendment, and issues of 
civil liberty.

13. What must the Second Circuit do on remand?