Brandeis and Limits on Federal Judicial Power
This chapter focuses on Louis Brandeis. In his most famous opinion in Erie R. R. v. Tompkins, the Court finally put an end to the regime under which federal courts sitting in diversity fashioned their own liability rules. In Erie, Brandeis mocked the notion of a general federal common law as a “brooding omnipresence in the sky” and held that, going forward, federal courts were to apply state liability rules in cases where there was no federal basis for suit. Brandeis's opposition to a general federal common law shared one rationale with Holmes—the normative weight of social consensus.
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