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Judicial Restraint in AmericaHow the Ageless Wisdom of the Federal Courts was Invented$
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Evan Tsen Lee

Print publication date: 2011

Print ISBN-13: 9780195340341

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780195340341.001.0001

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Brandeis and Limits on Federal Judicial Power

Brandeis and Limits on Federal Judicial Power

(p.59) 4. Brandeis and Limits on Federal Judicial Power
Judicial Restraint in America

Evan Tsen Lee

Oxford University Press

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.

Keywords:   Louis Brandeis, Erie R. R. v. Tompkins, federal courts, common law, liability lawm justices

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