Erie Railroad Company v. Tompkins/Concurrence-dissent Reed
Mr. Justice REED (concurring in part).

I concur in the conclusion reached in this case, in the disapproval of the doctrine of Swift v. Tyson, and in the reasoning of the majority opinion, except in so far as it relies upon the unconstitutionality of the 'course pursued' by the federal courts.

The 'doctrine of Swift v. Tyson,' as I understand it, is that the words 'the laws,' as used in section 34, line 1, of the Federal Judiciary Act of September 24, 1789, 28 U.S.C.A. § 725, do not included in their meaning 'the decisions of the local tribunals.' Mr. Justice Story, in deciding that point, said, 16 Pet. 1, 19, 10 L.Ed. 865: 'Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed.'

To decide the case now before us and to 'disapprove' the doctrine of Swift v. Tyson requires only that we say that the words 'the laws' include in their meaning the decisions of the local tribunals. As the majority opinion shows, by its reference to Mr. Warren's researches and the first quotation from Mr. Justice Holmes, that this Court is now of the view that 'laws' includes 'decisions,' it is unnecessary to go further and declare that the 'course pursued' was 'unconstitutional,' instead of merely erroneous.

The 'unconstitutional' course referred to in the majority opinion is apparently the ruling in Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions leaves federal courts free to interpret general law for themselves. I am not at all sure whether, in the absence of federal statutory direction, federal courts would be compelled to follow state decisions. There was sufficient doubt about the matter in 1789 to induce the first Congress to legislate. No former opinions of this Court have passed upon it. Mr. Justice Holmes evidently saw nothing 'unconstitutional' which required the overruling of Swift v. Tyson, for he said in the very opinion quoted by the majority, 'I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields.' Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 535, 48 S.Ct. 404, 409, 72 L.Ed. 681, 57 A.L.R. 426. If the opinion commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable. The line between procedural and substantive law is hazy, but no one doubts federal power over procedure. Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253. The Judiciary Article, 3, and the 'necessary and proper' clause of article 1, § 8, may fully authorize legislation, such as this section of the Judiciary Act.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, dissent, page 406, note 1, 52 S.Ct. 443, 446, 76 L.Ed. 815. Compare Read v. Bishop of Lincoln, (1892) A.C. 644, 655; London Street Tramways v. London County Council, (1898) A.C. 375, 379. It seems preferable to overturn an established construction of an act of Congress, rather than, in the circumstances of this case, to interpret the Constitution. Cf. United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836.

There is no occasion to discuss further the range or soundness of these few phrases of the opinion. It is sufficient now to call attention to them and express my own non-acquiescence.