The Story Behind Erie RR Co. v. Tompkins

This 2019 law review article by Brian L. Frye, “The Ballad of Harry James Tompkins,” is more than an excellent piece of legal history scholarship. It is also a riveting tale of ambitious lawyers, the dangers of freight trains, hoboes during the Great Depression, life in Pennsylvania’s coal country, and a how a host of terrible American class attitudes crossed paths in the aftermath of one poor man’s grievous injuries.

To be honest, I couldn’t stop reading. A taste:

At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway.

Colwell’s house was at the stub-end of Hughes Street, where it ran into the railroad tracks. When he reached the tracks, he discovered his neighbor Harry James Tompkins, about 6 or 10 feet south of Hughes Street. Tompkins had a deep gash on his right temple, and his severed right arm was in between the tracks. Colwell told the young men to go to Mrs. Rentford’s house down the street and call an ambulance. After calling the ambulance, they disappeared.

Here is a direct link to the whole article, “The Ballad of Harry James Tompkins,” at the Akron Law Review.

Elsewhere, Frye gives fascinating accounts of the legal theories, interests, and found-facts that helped shape the US Supreme Court’s landmark decision in the case that resulted, Erie Railroad Co. v. Tompkins (1938) (“There is no federal general common law.”), raising the strong possibility that there was a bit more to the story than what made it into Justice Brandeis’s written opinion.

My own small contribution to preserving the history of the Erie case: I added a marker to Google Maps near the abandoned railroad crossing where Mr. Tompkins was hurt in 1934.

The Defeat of California’s SB-827

Sad to report that a promising and important piece of legislation went down to defeat this week in the California State House. SB-827 , placed in the hopper by Senator Scott Wiener (D-San Francisco), would have superseded municipal zoning ordinances to permit five-story housing development within half a mile of most railroad stations, and within a quarter mile of certain major bus routes.

California, of course, has some of the highest home prices in the world. More than its booming tech economy, a resistance to new development, combined with decades of population growth, has driven the crisis. Local political resistance comes from two sources: sentiment and shrewdness. Between residents who hate change, and those who realize that their own property values are inflated (at least while the music keeps playing) by an artificial shortage, it is usually possible to muster opposition to any new proposed development if the permission-granting institution is only accountable to municipal residents. SB-827 would have overridden the local political resistance to new development in the parcels most able to support higher densities than what is presently allowed.

The shortage of affordable housing in the metropolitan regions of California — as in the regions surrounding New York City, Washington, and several of the capitals of Western Europe — is perhaps the most salient driving force behind rising inequality in the West. High housing costs block people from moving to the cities where the opportunities exist; they shut people out of opportunities to build equity in real estate; and they enshrine the economic advantages of those who inherit, or can afford to purchase, real estate in hot markets. Ryan Avent wrote about this phenomenon at length in his well-written piece, The Gated City. LT has belabored it for years. And my recent article advocating for a left-right consensus on zoning reform is focused on the costs of bad zoning policy.

The good news is that, although SB-827 has been defeated, it has also significantly raised the profile of the nexus between zoning and housing supplies. The expectation (and certainly my hope) is that a revised version of the bill will be presented soon. It is a hopeful sign that in the California State House, even the bill’s opponents were forced to concede that the diagnosis was accurate, even as they rejected the prescription. This issue is not going away, and neither is the impetus to address it. I don’t think we can (or should) be returning to a Victorian-era, common-law land use policy, where bare-bones building codes, private covenants, and nuisance lawsuits are the only restraints on private development. BUT, we do need to move in the direction of significantly liberalizing the density restrictions on housing development in competitive real estate markets. SB-827 would have been a major step in that direction; and with the heightened awareness that its debate has caused, creative variations on the proposal can now be tested in the laboratories of democracy.

Only with a lot more supply — new units — can the cost of housing be returned to some sort of equilibrium with people’s incomes. And only with such a change can we hope to create in the economic centers of the West a tangibly more egalitarian economy.

Crashing the System

Here’s a provocative op-ed piece from Saturday’s Times, by Michelle Alexander. The gist of the article is that a new civil rights movement could be built around a simple form of protest: a wider demand for jury trials. Given the speed at which the system operates under its present crush of cases, it’s not hard to imagine the gridlock that could ensue from a sudden and significant uptick in trial demands. Would it be enough to force an examination of the prison-industrial complex?