Courts often consult entrenched, preratification sources such as Blackstone’s Commentaries1 and The Digest of Justinian2 when rendering decisions in common law actions.3 These authorities can help guide courts in cases where a state’s common law may not form sufficient precedent.4 Recently, in Elam v. Early,5 the Fourth Circuit resolved a dispute over personal property at summary judgment by applying Virginia’s common law presumption that possession implies legitimate title.6 Adding historical gravitas to the presumption, the majority cited the conceptually similar Roman maxim of uti possidetis, translated to “as you possess,”7 to trace the presumption’s historical roots and further support its application.8 The Fourth Circuit’s partial reliance on Roman law gestures toward a “general law” of property stemming from timeless, universal principles. This implication, whether intentional or not, is in tension with the Erie9 doctrine because federal courts must demonstrate fidelity to state law in diversity cases.10 When courts do cite Roman precedent that overlaps with state law, they should clarify that this reference provides normative, rather than positive, support.11 Framing Roman law as normative support clarifies that it is merely a source of principles and policies that strengthens a state rule, as opposed to the canonical “formulation of a rule.”12
This case concerned a familial dispute over artwork. In 1943, painter Norman Rockwell depicted “visitors in the West Wing waiting” to meet with President Franklin D. Roosevelt, entitling the four-piece collection So You Want to See the President.13 Later that year, Rockwell gifted the collection to Stephen Early, President Roosevelt’s Press Secretary.14 Early (“Grandfather Early”) and his wife, Helen Early (“Grandmother Early”), “had three children — Stephen T. Early, Jr., Thomas A. Early, and Helen Early Elam.”15 Stephen Jr. had one daughter, and Thomas had three children.16 “Helen [Elam] had two children — Dru Anne Elam and William Elam[] III.”17 William III (“Elam”) was the plaintiff in this case.18
Elam argued that while Grandfather Early was still alive, he gifted the illustrations to his youngest daughter (Elam’s mother), Helen Elam, in 1949.19 Members from “[t]he two other branches of the family”20 — the wife of Stephen Jr. and the children of Thomas — disagreed, claiming that insufficient evidence existed to support “an inter vivos gift.”21
Grandfather Early died intestate in 1951.22 His possessions were divided among “Grandmother Early and their three children.”23 While the “accounting of [his] estate” had “meticulous[ly]” catalogued his personal effects,24 the Rockwell illustrations, despite their significant value,25 were not listed.26 After Grandfather Early’s death, Grandmother Early possessed the Rockwells “until at least 1960.”27 “The parties disagree[d]” on who possessed them between 196028 and 1969, but at a minimum agreed that Helen lived with the drawings from 1969 to 1978.29 In 1978, concerned after a break-in attempt, Helen loaned the Rockwells to the White House.30 Before doing so, she consulted with her eldest brother, Stephen Jr.31 Later that year, Grandmother Early died.32 Her “three children — Stephen Jr., Thomas, and Helen — each signed acknowledgments” that “they received a one-third share” of her personal effects.33 But yet again the Rockwell illustrations went unmentioned.34
Helen passed away in 2009.35 In her will, she bequeathed two of the four illustrations to her son, Elam, and two to her daughter, Dru Anne.36 “Dru Anne disclaimed her ownership in the” drawings, so Elam received Helen’s interest in all four drawings, though they remained on loan to the White House.37 According to Elam’s uncle, Thomas, one day in 2017, Thomas noticed the illustrations “in the background of [a televised] interview with President Trump.”38 Although Thomas died in 2020, his sons and the widow of Stephen Jr. informed Elam in 2021 that they believed they had “an ownership interest in” the drawings.39
In response, Elam went on the offensive. First, at his request, the White House returned the illustrations to him in early 2022.40 Second, Elam sued two of his cousins in state court, “seeking a declaratory judgment that he” had sole ownership of the Rockwell illustrations.41 He obtained a default judgment against one cousin.42 Then, in 2023, Elam brought suit in the U.S. District Court for the Eastern District of Virginia against the remaining cousins and his aunt, seeking the same declaratory judgment.43 Those relatives countersued, asking the court “to quiet title” and to issue “a declaratory judgment that” Elam could own no more than a one-third interest in the illustrations.44 They also brought “conversion, detinue, breach of bailment, and civil conspiracy” claims.45 Both parties “filed cross-motions for summary judgment.”46
Judge Nachmanoff granted summary judgment to Elam and denied the defendants’ motion.47 The court applied Virginia common law, which presumes a possessor owns property unless another party can “produce evidence of superior title”48 because “individuals generally own the personal property that they possess.”49 Judge Nachmanoff then found that Helen Elam likely “had . . . possession of the [i]llustrations from 1960 [to] 1978” and almost certainly possessed them from 1972 to 1978.50 This finding shifted the onus to the Earlys to prove “superior title.”51 The defendants failed to meet their burden, the court found, because they merely pointed to the “absence of record evidence proving an inter vivos gift” to Elam.52 In other words, they failed to provide affirmative proof of their own superior title.53 The court rejected an alternative theory that Elam stole the illustrations because the defendants produced no evidence “even plausibly suggestive of theft.”54 The district court then concluded that the rest of the common law actions were invalid: Conversion was “time-barred,”55 detinue failed for lack of a right “to immediate possession,”56 and breach of bailment failed for lack of a bailment agreement.57 Because the defendants’ civil conspiracy claim was parasitic on these earlier claims, it, too, was rejected, and “the [c]ourt grant[ed] summary judgment to” Elam on all counts.58 The Earlys appealed,59 arguing that the district court should have “assess[ed] the validity of the . . . gift” prior to applying the common law presumption of ownership.60
The Fourth Circuit affirmed.61 Writing for a divided panel, Judge Quattlebaum62 held that under Virginia law, “possession . . . creates a [rebuttable] presumption of ownership.”63 And, because “Helen had undisputed sole physical control over the Rockwells” for six years, the court concluded that she presumptively had legitimate title.64 Judge Quattlebaum traced this presumption’s origins to Roman law.65 Responding to a critique from the dissent, the majority insisted that its exegesis on Roman law merely “show[ed] the historical pedigree of the presumption that Virginia law maintains to this day.”66 The majority clarified that it did not reference Roman law “to replicate [its] precise procedures” in Virginia, stating that the court’s holding “does not depend on . . . an ancient equivalent of Rule 56” of the Federal Rules of Civil Procedure.67
The court then referenced both Virginia and Fourth Circuit cases that applied the presumption to resolve property disputes.68 Judge Quattlebaum stated that the presumption “promotes stability”69 and “relieves a court from having to preside over ‘a historical goose chase.’”70 Accordingly, he rejected the Earlys’ argument that the court must first determine whether Grandfather Early’s inter vivos gift to his daughter Helen was valid under D.C. law before applying the presumption.71
Having established a presumption of valid title for Elam, the court turned to the Earlys’ rebuttal.72 It found that intestacy laws as applied to the case were not sufficient evidence of superior title since the record showed no evidence that the drawings were part of either Grandmother or Grandfather Early’s estate when they died.73 Elam again triumphed over his cousins.74
Judge Richardson dissented,75 arguing that the presumption of superior title is appropriate at trial but not at summary judgment.76 He accepted the relevance of Roman law77 but contended that “the Romans applied the presumption only before a factfinder.”78 He argued that the presumption of superior title stemming from possession was applied at the rei vindicatio proceeding, an ancient analog to a bench trial, and not at a stage prior to factfinding.79 Judge Richardson explained that the interdictum of uti possidetis, somewhat like a preliminary injunction, merely “preserve[d] the status quo”80 of possession until formal proceedings could occur.81 He pointed to evidence supporting a “genuine dispute of material fact,”82 such as Helen’s choice to “consult[] her brother” on whether to loan the illustrations to the White House, and Grandmother Early’s retention of the illustrations even after Grandfather Early’s alleged inter vivos gift in 1949.83 In light of the conflicting record, he would have vacated and remanded for a jury trial.84
The Fourth Circuit correctly held that possession creates a rebuttable presumption of valid title. The relativity-of-title doctrine is well established in Virginia law.85 The court’s exploration of the past, however, appears to derive the presumption’s authority from ancient principles beyond the reach of any specific jurisdiction or timeframe.86 Erie announced the principle that “[t]here is no federal general common law.”87 Yet the Elam court’s demonstration of a state law’s “historical pedigree”88 gestured toward a general law of property. It traced the genealogy of Virginia’s common law presumption, suggesting that the legal rule endures across a range of jurisdictions.89 Instead, a normative framing of Roman law would have diminished the chance of contravening Erie.
By tracing the archaic lineage of the presumption of ownership from possession,90 the court indicated that this presumption transcends any particular jurisdiction. The majority located the presumption’s origins in classical Roman law, which empowered a praetor to issue an interdictum to prevent a challenger from forcefully displacing a possessor from their property.91 Judge Quattlebaum appeared to characterize this presumption as unbroken across time and space, tracing its expansion to chattels under Justinian;92 through the conflation of possession and ownership in medieval common law;93 and its survival in “[e]arly American law.”94 Finally, the court asserted that “th[is] presumption gathered no dust in Virginia,” framing current state law as inheriting the mantle of Roman tradition.95 Though the court cited several Virginia cases that applied the presumption,96 its emphasis on the practice’s continued application went beyond merely “ornament[ing] the discourse”97 and seemed to suggest Roman law’s importance to its decision.98 Instead of contesting the majority’s use of legal history, the dissent embraced the persuasiveness of Roman law and responded in kind.99
The court might have justified its citation to Roman precedent as coherent with Virginia’s tradition of borrowing from Roman law.100 Virginia’s intestacy statute, for example, was based largely on the Roman model.101 However, “as the nineteenth century progressed, the body of Virginia case law accumulated,” and Virginia courts eventually found it “unnecessary . . . to argue from the civil law of Imperial Rome.”102 Indeed, the Virginia Supreme Court has not cited the Roman maxim of uti possidetis since 1797.103
Before Erie, federal courts regularly referenced general law, a body of unwritten law outside statute or state common law.104 This approach was exemplified by the Supreme Court decision Swift v. Tyson.105 Since developing a universal law is no longer the overt goal of federal courts, Elam appears to have struck a compromise between Erie and Swift: The court may rely on general law if state law accords with it. The court’s contention is that legal practice concerning the presumption has been fairly uniform from the Roman Republic up to the present, including current Virginia law.106 Yet squarely relying on ancient precedent, without more, is inconsistent with Erie doctrine.107 Unelaborated overture to a principle’s “historical pedigree” is, at best, harmless error; at worst, it risks contravening Erie’s command because it may treat Roman and medieval authorities as authoritative precursors to state law. The court appealed to Roman law as a formulation of an established rule, not just a source of well-reasoned arguments.108
Moreover, the application of Roman precedent when it is consistent with state law assumes that the court’s historical investigation accurately excavated a rule substantially similar to Virginia’s presumption. Yet this use of history raises two additional problems. First, it faces the classical challenge of extrapolating from historical analogs at the appropriate level of generality.109 In Elam, the majority and the dissent disagreed on how tailored a historical parallel must be.110 The majority argued that it was a sufficient parallel to observe Roman praetors as similarly favoring actual possessors in property disputes.111 The dissent countered that Romans delayed the question of ownership until rei vindicatio, a later proceeding resembling trial, where the presumption was applied.112 Here, the majority is probably correct that it need not “pull[] out an ancient equivalent of Rule 56,”113 but the challenge remains. Second, in seeking an analog to Virginia law, the court’s sweeping historical discussion inevitably flattened nuances between jurisdictions. Generally speaking, unlike civil law, medieval English and early American common law did not inherit Roman property law.114
Given the Elam court’s citation to Roman law, it should have characterized its reference as a policy-based justification that buttressed its state law holding. First, the court might have leveraged history as evidence that the Virginia common law’s presumption has empirically been correct. The presumption is not determinative — yet centuries of decisions that concur in its allocation of ownership, from The Digest of Justinian to present-day authorities, might serve as evidence from one long natural experiment that a possessor usually has valid title.115 The court approached such an analysis when it stated that “our tradition . . . has decided that overinclusion is preferable to the insecurity of a world where the law does not assume that people own the property they possess.”116 Yet it missed an opportunity to further argue that history gave observational evidence that overinclusion under the presumption was tolerably low.
Second, the court might have argued that the presumption’s pedigree demonstrates that it is a structural aspect of property, integral to a legal system “managing uses [of things] at positive information cost.”117 This role for ancient precedent recalls courts’ reliance on foreign law to illustrate that the “world community” has converged on a common view.118 Just as biologists observe that multiple unrelated species of crustaceans independently evolved a “crab-like” body — a form of convergent evolution labeled “carcinization”119 — property systems tend to align on common features. This mode of policy-based reasoning would have better set Elam within Erie’s bounds, because it would have demonstrated that the court had good practical reasons for adopting a rule beyond merely importing rules from other jurisdictions and time periods.120 Nevertheless, even this normative usage could encounter the two identified problems associated with an unadorned appeal to the presumption’s “historical pedigree.” Hence, any recourse to Roman law should be exercised cautiously.
Because Erie remains prevailing doctrine, courts usually decline to establish new federal common law rules.121 In Elam, the Fourth Circuit could have simply cited to Virginia law. Instead, it reinforced state law with ancient Roman law. This unqualified citation to historical lineage as authoritative support contravenes Erie and the prevailing maxim that “property rights . . . are creatures of state law.”122 It also raises dual difficulties for judges: selecting the right level of generality and ensuring historical accuracy. Should a future federal court reference Roman law, it ought to cast this citation as normative support rather than additional legal authority. Such a framing would enhance the opinion’s persuasiveness and steer clear of a potential Erie issue.