Article Erie’s Suppressed Premise Michael Steven Green† INTRODUCTION Some originalists believe that interpreting the Constitution with fidelity means following the Framers’ specific intent—that is, deciding constitutional questions as the Framers themselves would have if asked.1 For example, the death penalty cannot be judged to be cruel and unusual—and so contrary to the Eighth Amendment—unless the Framers would have said that the death penalty is cruel and unusual. But what if the Framers did not want judges to follow their specific intent?2 What if they wanted their intent to be followed only in the general sense that a judge interpreting the Eighth Amendment should do her best to identify what actually is cruel and unusual, whatever the Framers might have thought † Robert E. & Elizabeth S. Scott Research Professor, College of William & Mary, Marshall-Wythe School of Law. I would like to thank Larry Alexan- der, Lea Brilmayer, Neal Devins, Scott Dodson, Larry Kramer, Kim Roosevelt, Steven D. Smith, and Bill Van Alstyne for helpful comments on various ver- sions of this Article. Kevin Crennan provided valuable research assistance. Copyright © 2011 by Michael Steven Green. 1. E.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMA- TION OF THE FOURTEENTH AMENDMENT 402–10 (2d ed. 1997) (advocating the interpretation of the Constitution on the basis of the Framers’ original inten- tion ); Edwin Meese III, Attorney Gen., Speech Before the American Bar Asso- ciation (July 9, 1985), in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 1 (Paul G. Cassel ed., 1986). I ignore here further refinements of the originalist approach. For a short history of the evolution of originalism, see Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 927–38 (2009). 2. E.g., H. Jefferson Powell, The Original Understanding of Original In- tent, 98 HARV. L. REV. 885, 948 (1985) (denying “intentionalism was the origi- nal presupposition of American constitutional discourse”); Richard A. Posner, In Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 32, 33. 1111 1112 MINNESOTA LAW REVIEW [95:1111 about the matter?3 Would that mean that specific-intent origi- nalism as a theory of constitutional interpretation is bankrupt? Not necessarily. There might be an argument for following the Framers’ specific intent even if they did not want their spe- cific intent to be followed.4 Such an approach might be justified, for example, because it cabins the power of judicial review. If judges are allowed to exercise their own judgment about what types of punishment are cruel and unusual, they will have too much power to overturn the actions of the political branches of government. But if such an argument works,5 originalism would, in a sense, be turned on its head. Instead of being a doc- trine devoted to following the Framers’ intent, it would funda- mentally refuse to respect their intent. This Article is about a similar phenomenon in connection with the Erie doctrine.6 In the first year of law school, our civil procedure professors told us that Erie Railroad Co. v. Tomp- kins7 overruled Swift v. Tyson.8 Under Swift, the common law was conceived of as a “brooding omnipresence”9 about which federal and state courts could come to differing judgments. Erie changed all that. A federal court could not come to its own con- clusions about the common law in Pennsylvania.10 It had to de- fer to the decisions of the Pennsylvania Supreme Court.11 Our civil procedure professors did not tell us, however, what a federal court should do if the Pennsylvania Supreme Court did not want deference. What if it thought the common law in Pennsylvania was a matter about which federal courts could come to their own judgment? Why would the respect for state courts demanded by Erie not compel federal courts, para- doxically, to adopt Swift concerning Pennsylvania common law? 3. On the distinction between specific and general intent in constitution- al interpretation, see David O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 PHIL. & PUB. AFF. 105, 121–24 (1988). 4. E.g., KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 181 (1999) (“Originalism neither depends on the interpretive intent of the founders nor employs that intent.”). 5. I take no stand on whether it does. 6. I thank Neal Devins for recognizing the analogy with originalism. 7. 304 U.S. 64 (1938). 8. 41 U.S. (16 Pet.) 1 (1842). 9. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). 10. See Erie, 304 U.S. at 79–80. 11. See id. at 80 (following Falchetti v. Pennsylvania R. Co., 307 Pa. 203 (1932)). 2011] ERIE’S SUPPRESSED PREMISE 1113 This is not a purely theoretical worry. At the time that Swift was decided, most state courts had their own Swiftian conception of the common law.12 If they entertained a common- law action arising in a sister state, they came to their own con- clusions about what the common law in the sister state was, without deferring to the sister state’s courts.13 This suggests that they conceived of their own common law as something about which sister-state and federal courts could come to an in- dependent judgment. Furthermore, even when Erie was de- cided in 1938, some states remained committed to this Swiftian view of the common law. Indeed, at least one state—Georgia— appears to still understand the common law in Swiftian terms.14 By claiming that state decisions bind a federal court, with- out considering state court views on the matter, Justice Bran- deis’s opinion in Erie appears to violate his own command to respect the authority of state courts concerning state law. If we are to save Brandeis’s argument, Erie must be turned on its head. A premise must be added that limits state courts’ power to determine the binding effect of their decisions. My goal is to make this suppressed premise in Brandeis’s argument explicit and to explore its effects. I begin by describing in greater detail the gap in Brandeis’s argument.15 In particular, I will show that it cannot be filled by Erie’s positivist mandate that all law—including the common law—“does not exist without some definite authority behind it.”16 Positivism is compatible with the Swiftian notion that a state’s common-law standards are a factual question about which the courts of other sovereigns, including federal courts, may come to their own judgment.17 In the light of positivism’s failure to explain Brandeis’s conclusion in Erie, I offer what I believe is the suppressed premise in his argument—namely, a constitutionally mandated nondiscrimination principle.18 A state supreme court may not free federal courts of the duty to follow its decisions concerning 12. See infra Part I.B. 13. Id. 14. See infra text accompanying notes 89–90. 15. See infra Part I. 16. Erie, 304 U.S. at 79 (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting)). 17. See infra note 105. 18. See infra Part II. 1114 MINNESOTA LAW REVIEW [95:1111 state law unless it is willing to free its own courts of the same duty. It may not vary the binding effect of its decisions depend- ing on whether the effect is in a domestic or a federal court. Since the Georgia Supreme Court takes its common-law deci- sions to bind Georgia state courts, they must bind federal courts as well.19 I also argue that there is an analogous hori- zontal nondiscrimination principle, derivable from the Full Faith and Credit Clause, that prohibits state supreme courts from varying the binding effect of their decisions depending on whether the effect is in a domestic or a sister-state court. I then explore the suppressed premise in Brandeis’s argu- ment in connection with the predictive method—that is, the view that a federal court interpreting unsettled state law must predict how the state supreme court would decide.20 The Su- preme Court has suggested that the predictive method follows from the deference to state supreme courts demanded by Erie.21 But here, too, we encounter our puzzle. The Supreme Court has imposed an interpretive method on federal courts without con- sidering what the state supreme court thinks about the matter. What if the state supreme court does not care whether federal courts use the predictive method in deciding unsettled ques- tions of its law? Once again, this is not a purely theoretical problem. The courts of some states—such as New York—do not use the pre- dictive method when interpreting the unsettled law of sister states.22 New York courts simply presume that unsettled sister- state law is the same as New York law, without trying to pre- dict how the sister-state supreme court would decide.23 This suggests that the New York Court of Appeals does not think that unsettled questions of New York law must be decided by federal (or sister-state) courts according to the predictive meth- od. If that is so, why has the Supreme Court claimed that the predictive method is constitutionally mandated? How can it tell the New York Court of Appeals how unsettled questions of New York law must be decided? The solution to this puzzle, I argue, is the vertical nondiscrimination principle latent in Erie. The New York Court of Appeals may not free federal courts of their duty to interpret unsettled New York law according to the pre- 19.