Yale Law Professor Argues Eliminating the Erie Doctrine on Customary International Tort Law

This years Monsanto lecture at Valparaiso University School of Law distinguished itself as one of the most prominent and influential in recent years, arguing in opposition to the longstanding Erie doctrine. G. Edward White, David and Mary Harrison Distinguished Professor of Law at Virginia Law School, proposed that the case well known to all law students for establishing state and federal law applications, Erie R.R. v. Tompkins, have no binding effect on customary international law. As a result of such an application, White proposes using federal common law for customary international tort law issues.

Few have as distinguished a record as Professor White. Starting his education at Amherst College, followed with an M.A. and Ph.D. from Yale, White received his J.D. from Harvard Law School in 1970. He then clerked for Chief Justice Warren of the Supreme Court of the United States, joining the Virginia law faculty in 1972. At Virginia, he was appointed to a University Professorship in 1992, holding that position until 2003.

White has also been a Guggenheim Fellow, twice Senior Fellow of the National Endowment for the Humanities, and is currently a Fellow of the American Academy of Arts & Sciences, a Fellow of the Society of American Historians, and a member of the American Law Institute. He is also an author of 12 books, including the final listing for the Pulitzer Prize in history and the Silver Gavel Award from the American Bar Association. He now spends his time lecturing, his most recent endowed lecture being the 2005 Knowlton Distinguished Lecture at the University of South Carolina School of Law.

According to White, the rejuvenation of the federal common law of torts argument stems from a recent Supreme Court decision in Sosa v. Alvararez-Marchain. Sosa mentions the Alien Tort Statute of 1789 contemplated by the Framers, using the “law of nations” in Federal courts regarded as “general” law, one of the sources of common law. Thus, courts in common law cases could draw on the “law of nations” along with the “law of merchants,” “maritime law” and “natural law,” to make their decisions.

However, the Sosa Court limited the torts able to use the “law of nations” to the torts actually contemplated by the Framers in 1789. The framers, however, White argues, believed in a cyclical view of history, a progressive view of humans becoming more moral over the years. White says, in effect, “Tort law can’t be framed over a particular period of time.” Evidently, it has to be able to develop and change.

Before the Erie decision in 1938 was decided, federal common law and the “law of nations” was widely used for international issues. The Erie opinion, written by Justice Louis D. Brandeis, widely criticized such use of federal common law and stated that such law does not exist outside of judicial decisions, concluding that there was no such thing as federal common law. White points out that the Framers did not think that the judiciary and congress had the power to do the same thing in making law as they can now, which Justice Brandeis glosses over and does not address. This influences the argument of federal courts being able to establish federal common law for customary international tort issues.

Nevertheless, post Erie, no federal common law exists, only federal law ancillary to federal statutes, such as the ATS and the Constitution. This is what the Sosa Court used, defining torts in violation of the law of nations under the ATS. However, state common law on customary international tort issues derived in particular states does exist. This provides a problem because states are then able to define the scope of the customary international law of torts within their particular jurisdiction and hold federal courts to that particular view.

White pointed out that “the ‘law of nations’ was not state law or federal law- it was International law.” Therefore, it is incredulous that this type of law is not allowed to exist after Erie. Now state law and ancillary federal law govern such cases. It is ironic because the federal government’s interest on international law has risen over the years in contrast with that of the states. By the 1930s and 1940s, a number of cases declared the federal government to have exclusive powers in foreign affairs and that federal executive agreements with foreign nations trumped competing state law. After Erie, however, customary international law must be derived from state law and limited federal law.

White gives three reasons as to why using state law for international torts would be detrimental. First, the federal courts have a discrete interest in International law. Second, when states serve as multiple decision makers for International law, it has an effect upon the whole nation and not just upon the state. Third, giving the power to states would encourage them to get into international law. This would prove hard to obtain uniformity; it would also lend itself to inexperience and may provide for much too narrow a scope.

Even though courts have identified certain areas where federal courts have continuing power to invent common law rules for unique and distinctive federal concerns, the majority in Sosa cautioned the use of such law in the absence of direct statutory authorization. Three members of the Sosa Court further found that Erie prevented the federal courts from providing for such customary international law.

If federal common law were in place, federal court decisions would not pre-empt State law nor would federal courts have to follow state law. In the words of C. Edward White on the implication of the Erie decision on customary international law in federal courts, “There is no reason to extend a perversity when it could be capped.”

The Monsanto Fund, the charitable arm of the Monsanto Company, makes annual Monsanto lectures possible. It was 1953 Valparaiso University School of Law graduate, Richard Duesenberg, a former senior Vice President and General Counsel and Secretary for the Monsanto Company who started the tradition. In recent years, law professors from Stanford, University of Chicago, Yale and Emory have given the lecture, just to name a few. Most recently, Robert C. Post, Davi Boies Professor of Law, of Yale Law School, gave the lecture.

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