Address of U.S. Supreme Court Associate Justice Hugo L. Black to The Missouri Bar Annual Banquet

Editor’s note: On September 25, 1942, United States Supreme Court Associate Justice Hugo L. Black addressed members of the Missouri Bar Association – the voluntary bar organization that preceded the mandatory Missouri Bar – at its annual banquet at the Tiger Hotel in Columbia. Justice Black’s address, focusing on the landmark decision in the case of Erie Railroad Co. v. Tompkins, remains of interest to contemporary readers and is reprinted here.

Mr. President, members of The Missouri Bar, ladies and gentlemen:

During the political campaign of 1926, and many times thereafter up to and including 1936, I talked to the people of Missouri on the political questions involved in the campaigns. My assignments took me at one time or another into various sections of Missouri, both rural and urban. The generous reception always given me by Missourians is one of the cherished memories of that part of my public activities. Friendships formed on those occasions have survived through the years, and in the list of those friends are your two present United States Senators, Clark and Truman, who joined your Committee in extending the very cordial invitation given me to be with you at this time. For these reasons, and many others – including the opportunity afforded to be with the lawyers of Missouri in a beautiful city so devoted as this to higher education – I felt honored to receive and happy to accept your invitation.

Today, however, the wide range of political subjects which formerly brought me to Missouri are not for me to discuss. And even other subjects, wholly nonpolitical, must frequently be approached with caution by an Associate Justice of the Supreme Court of the United States. One of the interesting features of service as a member of the Supreme Court is that before us there must eventually come most, if not all, of the problems of the nation. There is no phase of the struggle of society for its own improvement, no aspect of the clashing relations of men to one another that cannot provoke litigation and require judicial settlement. The very fact that the entire range of human problems may come before a Justice in his official capacity imposes a sharp limitation on his freedom of discussion in his unofficial capacity. The first requisite of a judicial system is that its judges be fair. Fairness means many things, but above all it means that no issue may be prejudged – that judges must keep open minds upon genuine issues which they may be called upon to determine. In consequence, it is an honorable tradition that judges should avoid public discussion of conflicts of the day which may tomorrow be the necessary subjects of their judicial determination. The problems of the war in which you and I and all Americans are deeply interested – from the disposition of enemy spies to the imposition of price ceilings – either have been or may be before the Court.

And so, today, almost apologetically, I turn from the temptation to discuss the most absorbing to what I am sure will be a much less fascinating subject – the effect upon society and government of a establishment of a single legal rule. After all, however, subject-choice is probably not of great importance because the chief object of my visit is the pleasure and profit I have and shall derive from the informal exchange of ideas with you. And now let us make a rather circuitous approach to a highly important rule of law.

At 2:30 a.m. on July 27, 1934, Harry Tompkins was returning to his home, which was on a stub end street ending at a railroad track in the village of Hughestown, Pennsylvania. A friend drove him up to a point a block away where he got out of the car and began to walk up a path along the tracks to his house. The night was dark and he could barely see his way. Suddenly a train came toward him, a train which, he later contended, would ordinarily have cleared him by a foot or two as he walked along the path. But in an instant something black (he later supposed it to have been an open refrigerator door) loomed before him and hit him on the head, threw him to the ground, and his right arm fell under the rolling wheels.

When Mr. Tompkins started his walk that evening, he could hardly have been aware that he was about to begin one of the most important cases at law in American legal history. Upon his partial return to health, he sued the Erie Railroad. Since the Erie was a New York corporation and Tompkins a citizen of Pennsylvania, the action was brought in a federal court on a diversity of citizenship basis. Tompkins’ lawyer successfully contended before the Federal District and Circuit Courts that the issue was one of “general law,” that is a law declared to exist by Federal Courts and without regard to the law of Pennsylvania as declared by Pennsylvania judges. On this basis Tompkins was given a judgment in the lower courts for $30,000.

We as lawyers know that often the most far-reaching decisions of our courts are not those which make the newspaper headlines. As decision of a State Supreme Court holding that a manufacturer is liable in negligence to the ultimate consumer for the defective construction of an article, or, to put the same case concretely for the benefit of the non-lawyers in this group, a decision that the purchaser of a motor car may under certain circumstances recover the motor car manufacturer if a wheel drops off, may receive little public attention. Yet such a holding may in the course of time affect thousands of people and go far to reshape the business practices of our time. In the course of its decision, Erie-Tompkins became just such a case. When it left the Circuit Court of Appeals it was of mine-run nature; but as decided by the Supreme Court, it went far beyond an unfortunate conflict between a pedestrian and a railroad. While the significance of the holding was adequately understood in the legal journals, which commented upon it exhaustively, it must be virtually unknown to the laity generally.

The lower court opinions in the Erie case had been based on the premise that in cases of this sort the federal courts should apply “general” rather than state law. This premise in turn stemmed from the case of Swift v. Tyson, an 1842 decision in which Justice Story for the Supreme Court declared the “general law” doctrine. The famous case of Swift v. Tyson arose from the following rather commonplace circumstances: Two persons, North and Keith, gave Swift a bill of exchange in payment of a promissory note. The bill was accepted, or guaranteed, by another person named Tyson who in so doing meant to pay for certain land which he was purchasing from Norton and Keith. Sadly enough for Tyson, he discovered that Norton and Keith could not sell him the land because they did not own it. Therefore, when Swift sued Tyson on the bill, Tyson defended on the ground that there had been a failure of consideration to him, and that Swift could not, under these circumstances recover as a bona-fide holder for valuable consideration because Swift had paid nothing for the bill – all he had done was to accept the bill as new evidence of an old debt. The controlling issue thus became whether a new bill of exchange for an old debt was an adequate consideration for Swift’s acceptance of the bill.

The bill was made in the State of Maine; it was accepted in New York. If governed by the laws of New York, which might have been thought applicable, Swift would probably have been found to have given no consideration. Justice Story, however, held that while the Judiciary Act of 1789 required the federal courts to follow the statutory law of the states, it did not require them to follow the common law. Therefore he applied what he considered to be the “general principles and doctrines of commercial jurisprudence,” found that a bill given in payment of a pre-existing debt was given for adequate consideration, and held for Swift.

Practice under the doctrine came to challenge that major goal of the law, consistency and even-handedness of operation. Parties picked the Court in which the rule of law would favor them; and in extreme cases formed new corporate entities for the express purpose of creating a diversity of citizenship through which they could escape the application of the law of the state in which the transaction in litigation had actually occurred. In one of the most sensational of the reported cases two Kentucky corporations desired to make a certain contract in restraint of trade which would have been void under Kentucky law, but not under federal law. Thereupon one of the corporations reincorporated in Tennessee for the sole purpose of evading the state law, made the contract, and in federal court enjoined the competitor.

When the Erie Railroad case came to the Supreme Court, the Court deliberately abandoned the rule announced in Swift v. Tyson. It held that the Judiciary Act of 1789 had never meant to free federal courts from the obligation to respect the common law of the states any more than they could ignore the statue law; and the majority held that the federal courts had been guilty of an unconstitutional usurpation of power in assuming otherwise. The case itself was returned to the lower court for a finding as to the applicable Pennsylvania law.

This decision wiped out at one stroke the rationale which had served in hundreds, perhaps thousands, of cases involving conflicts between “local” and “general” law. It did not answer all questions. For example, the line between substance and procedure, the extension of the doctrine to admiralty jurisdiction, and the total impact of the principle in cases other than those of diversity of citizenship have not yet been finally determined. But while the details of the new policy will accumulate with experience, the broad policy of the case stands clear for our perception.

The decision marks the expression of a particular legal philosophy, a philosophy which believes that laws governing isolated local transactions should spring from the customs, habits, and experiences of a people. This surely was not the concept of the originators of the Swift v. Tyson doctrine. To those persons the law governing local commercial transactions did not spring from “local tribunals”; it must instead by sought in the “general principles and doctrines of commercial jurisprudence.” Thus the law was not of the people; it was above them, or in the words of one of the strongest critics of Swift v. Tyson, “A brooding omnipresence in the sky,” a “transcendental body of law outside of any particular state.” The Erie Railroad decision rejects such thinking. It holds that law must be completely the creature of those who fashion it and those who live under it. It recognizes the human origin of law, that law is man made and that we delude ourselves with palatable but unwholesome rationalization when we attempt to gild the human judge-source of common law with an aura of trans-human universality.

But enough of such abstraction. Granted a difference in philosophical content of the two decisions, what is the difference in consequence? First, Erie Railroad, in line with the best trends in American thought, extends democracy further into law by returning the task of law fashioning to the largest possible group in the society, the group which is closest to the people. The many state courts are given a larger responsibility in the development of the common law. Second, the decision recognizes the necessity for a variety of law sources, in order to accommodate the law to a variety of customs, habits and situations which exist in a country as large as ours. In this respect the opinion particularly reflects the outlook of its writer, Mr. Justice Brandeis. The same spirit that led Justice Brandeis to devote so much of his thought and of his funds to the development of a comparatively little known law school in Louisville, Kentucky, and to advise his student and disciples to settle throughout the United States instead of concentrating in the wealthier centers of the East, led to this decision. For Justice Brandeis knew that a vigorous America required vitality in all its sections and that a healthy American law could best be developed by independent thought throughout the country.

In even more tangible respects, though in no less important ones, the decision is of grave importance. Principal among these correlative consequences is its meaning in terms of the relation of the states and the federal government. In this era of necessary centralization there is danger that we may minimize the role of the states in our society. Persons carelessly observing the course of legislation since the adoption of the Interstate Commerce Act of 1887 and the subsequent progression of decisions of our courts have frequently concluded that our states are losing all independence and significance, becoming merely minor administrative units. Such thinking overlooks the true meaning of legal developments such as this, for while the federal government must be supreme within the fields in its charge, and while that supremacy may come to have broader and broader consequences as time and science unify our national life, the states maintain equal supremacy in the area of their own jurisdiction. Erie Railroad is the renunciation of power wrongfully assumed by the federal government. It is a declaration not only that Congress has not, but that Congress can not, except in pursuance of a constitutional power otherwise appropriately exercised, declare substantive rules of common law applicable in a state, and that therefore the federal courts cannot, merely because of the accident of jurisdiction, arrogate to themselves a state power which Congress could not give them. In this sense Erie Railroad is one of the great victories for state sovereignty.

This is no trifle. The fields of law which are here replaced in their proper sphere of authority are those branches of law which most intimately affect the affairs of the American people. For most of us our largest relation to the law is in the contracts we make or in the torts we may inflict or suffer. It is this relationship which has now in large measure been again entrusted to the states.

The chief consequence of Erie Railroad to you as attorneys is that in returning your law to you, there is an increase in your responsibility as officers of the Court. There has long been an unfortunate gap between state and federal practitioners – a sense that the Supreme Court is hopelessly remote and that even the District and Circuit Courts are no concern to most of you. This distinction is no longer, if it ever was, of any meaning, for henceforth the federal courts must apply a Missouri law which you help to create. The increased scope given your common law will make you more eager than ever before to satisfy yourselves that your law is as you want it. In your arguments to your courts, you may desire to re-examine your precedents and, in such respects as you find necessary, remold your law.

What I am saying is that the decision in Erie Railroad requires a critical reappraisal of the condition of state law by every state court and state bar. That such a condition exists is through no fault of yours, but the condition exists, just the same. In certain branches of law in which the most important litigation has been in federal courts, state law, due to the effect of a hundred years of enervation by Swift v. Tyson, may have become flabby and inadequate. The utmost bravery of approach by all of you is required to compensate for this time lag.

This, then, is the meaning of the case: legal realism replaced legal factionalism. The common law, through its return to the states, should be refreshed by its contact with a larger democracy and the bench and bar of the states are charged with a new responsibility for the development of American law.

(Here followed extemporaneous remarks by Mr. Justice Black, not here published, concerning, among other things, the present war, in which reference was made, however, to the first World War, and which remarks ended on the following note:)

We are at war today, and today there is no section of the country which is like it was before. From every part of this nation the boys have marched under the flag and are marching. They march together, just as we did before.

From that war came a beautiful little piece of sentiment, which I think is appropriate for the present. I think it is appropriate, even in the use of the word “France,” as it was then, something we may well repeat.

“Here’s to the gray of the wind-swept north
When we meet on the fields of France;
May the spirit of Grant be with us there
As the sons of the North advance.

“And here’s to the blue of the sun-kissed sky,
When we meet on the fields of France;
May the spirit of Lee be with us there,
As the sons of the South advance.

“But here’s to the Blue and Gray as one,
When they meet on the fields of France;
May the Spirit of God be with us all,
As the sons of the Flag advance.”