Black & White Taxi & Transfer Co. v. Brown & Yellow Taxi & Transfer Co. (1928)

Holmes Dissent (Excerpts)

The Circuit Court of Appeals, affirming a decree of the District Court, … expressly recognized that the decisions of the Kentucky Courts held that in Kentucky [the law went one way] but this being a 'question of general law' it went its own way regardless of the Courts of this State.

The Circuit Court of Appeals had so considerable a tradition behind it in deciding as it did … But the question is important and in my opinion the prevailing doctrine has been accepted upon a subtle fallacy  that never has been analyzed. If I am right the fallacy has resulted in an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct. Therefore I think it proper to state what I think the fallacy is.  The often repeated proposition of this and the lower Courts is that the parties are entitled to an independent judgment on matters of general law. By that phrase is meant matters that are not governed by any law of the United States or by any statute of the State--matters that in States other than Louisiana are governed in most respects by what is called the common law. It is through this phrase that what I think the fallacy comes in.

Books written about any branch of the common law treat it as a unit, cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately, and criticize them as right or wrong according to the writer's notions of a single theory. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. It may be adopted by statute in place of another system previously in force. But a general adoption of it does not prevent the State Courts from refusing to follow the English decisions upon a matter where the local conditions are different, as is done every day. It may be departed from deliberately by judicial decisions, as with regard to water rights, in States where the common law generally prevails. Louisiana is a living proof that it need not be adopted at all. (I do not know whether under the prevailing doctrine we should regard ourselves as authorities upon the general law of Louisiana superior to those trained in the system.) Whether and how far and in what sense a rule shall be adopted whether called common law or Kentucky law is for the State alone to decide.

Justice Story in Swift v. Tyson, evidently under the tacit domination of the fallacy to which I have referred, devotes some energy to showing that section 34 of the Judiciary Act of 1789, refers only to statutes when it provides that the laws of the several States shall be regarded as rules of decision in trials at common law in Courts of the United States…. In my opinion the authority and only authority is the State, and if that be so, the voice adopted by the State as its own should utter the last word. I should leave Swift v. Tyson undisturbed … but I would not allow it to spread the assumed dominion into new fields.

Justices Brandeis and Stone concur in this opinion.