THE ERIE DOCTRINE AND THE STRUCTURE
OF CONSTITUTIONAL REVOLUTIONS
WILLIAM
R.
CASTO*
"The concept of the validity of the law rests ... on hypotheses concerning the spiritual life of the judge."!
I.
INTRODUCTION
Legal positivism2 has been one of the more influential ideas
in the history of American law. 3 The general acceptance ofposi© Copyright 1987 William R Casto
* Professor of Law, Texas Tech University. B.A., 1970, J.D. 1973, University of
Tennessee at Knoxville; J.S.D. 1983, Columbia University. I would like to thank Thomas
E. Baker and James E. Viator for their comments and suggestions regarding earlier drafts
of this article.
1. A. Ross, ON LAW AND JUSTICE 37 (1959).
2. By legal positivism, I mean the general inclination to define law, at least the law
administered in courts, exclusively in terms of the pronouncements and activities of public
officials. See generally J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (2d
ed. 1861) [hereinafter AUSTIN'S PROVINCE]; H. HART, THE CoNCEPT OF LAW (1961). For
purposes of the present article, the most significant aspect of positivism is the legal
profession's received faith that jUdges make law. See infra notes 100-02 and accompanying
text.
3. For example, when positivist lawyers define law in terms of process, process
becomes important. See H. HART ~ A. SACKS, THE LEGAL PROCESS (rent. ed. 1958).
More specifically, during the first third of this century, the rise of legal positivism
influenced a reassessment of the doctrine of stare decisis and the retroactive effect of an
overruling decision. See Freeman, The Protection Afforded Against the Retroactive
Operation of an Overruling Decision, 18 CoLUM. L. REv. 230 (1918); Hardman, Stare
Decisis and the Modem Trend, 32 W. VA. L.Q. 163 (1926); Kocourek, Retrospective
Decisions and Stare Decisis and a Proposal, 17 A.B.A. J. 180 (1931); Lile, Some Views on
the Rule ofStare Decisis, 4 VA. L. REv. 95 (1916); Note, Retroactive Effect ofan Overruling
Decision, 42 YALE L.J. 779 (1933); see also Linkletter v. Walker, 381 U.S. 618, 622-25
(1965). The most famous result of this reassessment was the concept of prospective
overruling. See Great N. Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-66 (1932).
The above stare decisis authorities expressly noted the influence of positivist thinkers.
Freeman, supra, at 233 n.6; Hardman, supra, at 164 n.8; Kocourek, supra, at 180; Lile,
supra, at 103; Note, supra, at 779; Linkletter, 381 U.S. at 622-24; Great N. Ry., 287 U.S. at
365 n.2.
During the same time period, the general acceptance of positivism also induced a
radical change in forum courts' treatment of other states' decisional law when choice of law
principles indicated the applicability of the other states' laws. See infra note 103. This
change was expressly linked to John Austin and legal positivism. See, e.g., Musser v.
Musser, 221 S.W. 46, 48 (Mo. 1920); see also Annotation, Duty of Courts to Follow
Decisions of Other States, 73 A.L.R 897, 909 (1931) (modem courts "proceed upon the
Austinian concept of law").
907
HeinOnline --- 62 Tul. L. Rev. 907 (1987-1988)
908
TULANE LAW REVIEW
[Vol. 62
tivism in this century virtually dictated the overruling of Swift v.
Tyson 4 and the creation of the Erie doctrines in 1938. Under
Swift and before Erie R.R. v. Tompkins, 6 judges were considered
the living oracles of a preexisting natural law. Erie, however, signaled an intellectual revolution that pictured judges as
lawmakers in a relativistic legal world. This essay is about the
nature of this shift in ideology and what it suggests more broadly
about how constitutional law is made.
The most striking aspect of the Erie doctrine is its sudden,
dramatic acceptance by the Supreme Court. In the late nineteenth century, the Field brothers, David and Stephen, launched
devastating positivist attacks7 on Swift, and their self-evident
criticism was vigorously reiterated by Professor Gray,S Justice
Holmes,9 and others. to But neither Holmes, nor Gray, nor the
Fields lived to see Swift dethroned. A solid majority of the
Court cleaved to Swift as late as 1928,11 Then in 1938 an even
greater majority in Erie rejected the Swift doctrine as patently
wrong.12
What happened between 1928 and 1938? No new arguments were developed. Neither the petitioner nor the respondent in Erie addressed Swift's validity until the issue was forced
upon them by Justice Brandeis during oral argument. 13 Even
then, counsel for petitioner initially responded that he "could
not refrain from expressing [his] view that the doctrine of [Swift]
was unfortunate in its consequences but that nevertheless, its
acceptance by so many courts for so many years precluded [him]
from suggesting that the doctrine be overruled."14 But the
4. 41 u.s. (16 Pet.) 1 (1842).
5. Erie R.R. v. Tompkins, 304 U.S. 64 (1938) (6-2 decision).
6. ld.
7. See infra notes 105-12 and accompanying text.
8. See infra notes 113, 115 and accompanying text.
9. See infra notes 114-29 and accompanying text.
10. See generally T. FREYER, HARMONY & DISSONANCE: THE SWIFT & ERIE CASES
IN AMERICANFEDERALISM chs. II-III (1981). Professor Freyer's book is a treasure trove of
information about the fall of Swift v. Tyson.
11. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer
Co., 276 U.S. 518 (1928) (6-3 decision).
12. 304 u.s. 64 (1938) (6-2 decision).
13. See Younger, What Happened in Erie, 56 TEX. L. REv. 1010, 1024-27 (1978).
14. F. HICKS, MATERIALS AND METHODS OF LEGAL REsEARCH 376 (3d ed. 1942)
(recollection of petitioner's counsel); accord Erie, 304 u.s. at 66 (summary of petitioner's
brief); see also Letter from Elliott Cheatham to Arthur John Keeffe (Jan. 21, 1969)
(discussing recollection of Mr. Tompkins' counsel), reprinted in Symposium, The Courts
and Their Roles: Some Observations, 18 AM. U.L. REv. at 372-75 (1969).
HeinOnline --- 62 Tul. L. Rev. 908 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
909
Court forced the issue and devoted most of the oral argument to
a general discussion of Swift. IS A few days later the Justices conferred in private, and all but two voted to overrule. 16 The opinion was then assigned to Justice Brandeis who did little more
than repeat the longstanding positivist critique. 17
Holmes, Gray, and the Field brothers were great men in
American law, but the force and logic of their capable advocacy
cannot explain the eventual decision in Erie. This essay argues
that a better understanding of Erie can be attained by drawing
upon some of Thomas Kuhn's insights into the structure of scientific revolutions. 18 Kuhn wrote that all changes in scientific
knowledge cannot be explained solely in terms of incremental
15. See F. HICKS, supra note 14, at 376-77.
16. See M. PUSEY, CHARLES EVANS HUGHES 710 (1952). Chief Justice Hughes
opened the discussion with the terse remark, "If we wish to overrule Swift v. Tyson, here is
our opportunity." Id.
17. For an admirably detailed exposition of the process of writing the Erie opinion
that clearly explains the opinion's relationship to the longstanding positivist critique, see T.
FREYER, supra note 10, at 131-53. Brandeis had concurred in Holmes' positivist attack on
Swift in the Black & White Taxicab case; see also C. ELIOT, M. STOREY, L. BRANDEIS, A.
RODENBECK, & R. POUND, PRELIMINARY REpORT ON EFFICIENCY IN THE
ADMINISTRATION OF JUSTICE (1914). Brandeis thought Holmes' dissent would "stand
among his [Holmes'] notable opinions." Letter from Louis Brandeis to Felix Frankfurter
(April 10, 1928), reprinted in 5 LEITERS OF LoUIS D. BRANDEIS 335 (M. Urofsky & D.
Levy ed. 1978).
Swift had turned upon the construction of the Rules of Decision Act. See infra notes
34-36 and accompanying text. In 1923 Professor Charles Warren attempted to refute the
Swift Court's construction on the basis of his discovery of a handwritten draft, with
emendations, of the Act. Warren, New Light on the History ofthe Federal Judiciary Act of
1789, 37 HARV. L. REv. 49, 51-52, 81-88, 108 (1923). Brandeis cited Professor Warren's
discovery, as had Justice Holmes in a prior opinion. Erie R.R. v. Tompkins, 304 U.S. 64,
72·73 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab &
Transfer Co., 276 U.S. 518, 535 (1928) (Holmes, J., dissenting). Neither Justice, however,
emphasized Professor Warren's argument. Holmes equivocally said Professor Warren "has
shown that Mr. Justice Story probably was wrong if anyone is interested to inquire what
the framers of the instrument meant. But this question is deeper than that." Id. at 535.
Justice Brandeis' general philosophy was that even serious errors in statutory interpretation
should be corrected by the legislature-not by the courts. Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting); see also infra notes 34-37 and
accompanying text. He relegated Professor Warren's discovery to the introductory portion
of the Erie opinion. 304 U.S. at 72-73. This ginger treatment of the Warren thesis was
warranted. As early as 1938, Felix Frankfurter doubted that Warren's discovery would be
the "last word on the subject." Letter from Felix Frankfurter to Harlan Stone (May 9,
1938), quoted in T. FREYER, supra note 10, at 112. Subsequent commentators have
concluded that Professor Warren's discovery is fatally ambiguous. See 19 C. WRIGHT, A.
MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4502, at 12-13 n.29
(1980).
18. See T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970)
[hereinafter T. KUHN, STRUCTURE]; see also T. KUHN, THE EssENTIAL TENSION (1977)
[hereinafter T. KUHN, TENSION].
HeinOnline --- 62 Tul. L. Rev. 909 (1987-1988)
910
TULANE LAW REVIEW
[Vol. 62
advances. Most scientific work-what he calls normal scienceis based upon fundamental paradigms whose validity is assumed
as a matter of faith by the scientific community.19 Occasionally,
however, the scientific community loses faith in the utility of a
particular paradigm for the solution of scientific problems. The
resulting crisis sets the stage for a paradigm shift in which a new
and contrary paradigm supplants the old one. 20 Because conflicting paradigms almost by definition are internally consistent
and yet incommensurable with each other, their comparative
value is difficult to assess through logical proof. 21 Kuhn concludes that scientific revolutions are, to a significant degree,
functions of nonrational faith within the scientific community.22
Kuhn's model of revolution has been criticized. 23 For
example, some have complained that Kuhn's community of
scientists is difficult to define in a noncircular manner and that
the mechanisms by which the community's prevalent faith is
enforced are not readily apparent. 24 Critics also have drawn
back in horror from Kuhn's suggestion that the validity of fundamental scientific doctrine is relative and based to a significant
degree upon subjective considerations. 25 Many of these objections lose their significance, however, when Kuhn's insights are
applied to Supreme Court decision making. Charges of relativism and irrationality seem naive when the context is changed to
a discipline like lawmaking in which irrationality and relativism
19. T. KUHN, STRUCTURE, supra note 18, at chs. I-III.
20. Id. chs. VII-VIII. His most striking example is the Copernican revolution. See
id. at 68-76, 154-57. Critics have attacked the concept of paradigms as being hopelessly
vague. See, e.g., Shapere, The Structure ofScientific Revolutions, 73 PHIL. REv. 383 (1964).
For Kuhn's response, see T. KUHN, Second Thoughts on Paradigms, in THE EsSENTIAL
TENSION 293-319 (1977) [hereinafter KUHN, Second Thoughts]. Insofar as the dynamics of
Supreme Court decision making is concerned, Kuhn's concept of paradigm is of little
importance. Instead, this essay draws upon his insights into the manner in which once
controlling ideas come to be replaced by new ones.
21. T. KUHN, STRUCTURE, supra note 18, at ch. XII; see also id. at 109-10; Kuhn,
Theory-Change as Structure-Change: Comments on the Sneed Formalism, 10
ERKENNTNIS 178, 190-91 (1976).
22. T. KUHN, STRUCTURE, supra note 18, at ch. XII; see also id. at 184-86 (second
thoughts by Kuhn); T. KUHN, Objectivity, Value Judgment, and Theory Choice, in THE
EsSENTIAL TENSION 320-29 (1977).
23. See, e.g., PARADIGMS AND REVOLUTIONS (G. Gutting ed. 1980).
24. See, e.g., Musgrave, Kuhn's Second Thoughts, 22 BRITISH J. FOR PHIL. OF SCI.
287 (1971); see also T. KUHN, STRUCTURE, supra note 18, at 176-81 (Kuhn's postscript
responses to critics); T. KUHN, Second Thoughts, supra note 20.
25. See T. KUHN, STRUCTURE; supra note 18, at 186 n.9; Kuhn, Objectivity, Value
Judgment, and Theory Choice, supra note 22; see also I. BARBOUR, MYTHS, MODELS AND
PARADIGMS 107-08 (1974).
HeinOnline --- 62 Tul. L. Rev. 910 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
911
are embraced. Furthermore, the pertinent community of "scientists" is easily defined in terms of actual and potential membership of the Supreme Court. 26 The enforcement mechanisms are
equally obvious: the Court's power of review coupled with other
judges' psychological subservience to the Supreme Court's
pronouncements. 27
This essay begins with an account of how and why the
American legal profession came to replace the oracular model of
judicial decision making exemplified by Swift with the Erie doctrine's rationale of positivism. 28 The oracular model pictured
common-law judges as oracles who discovered preexisting metaphysical legal principles and declared the principles' applicability in particular cases. Under this view, the metaphysical
principles were the law, and judicial precedents were merely evidence of the law. 29 The oracular or declaratory model in the
early nineteenth century and legal positivism in the present century are similar to Kuhn's scientific paradigms. The legal community has generally accepted each theory in its time as an
article of faith. Although the theories are in direct conflict, each
is internally consistent. Therefore, their comparative value cannot be assessed through logical proof. Instead, the rise of legal
positivism and the consequent demise of Swift are more easily
explicable in terms of coherence between legal theory and professional experience. The Swift and Erie doctrines were fashioned by elite members of the Supreme Court, and this essay is
concerned with Supreme Court decision making. Therefore, the
experience and faith of the professional elite will be emphasized
to the virtual exclusion of other lawyers' beliefs.
The Erie decision provides a good laboratory for studying
Supreme Court decision making because the case involved a
comparatively simple conflict between two faiths-the oracular
and the positivist visions of the common law. Emphasizing this
coincidence is not intended to suggest that the Court's decision
making generally or even frequently involves a simple conflict
between polar faiths. The overruling of Swift v. Tyson does,
however, reaffirm the significance of individual Justices' a priori
faiths. Erie was a direct consequence of an underlying judicial
26. See infra notes 264-73 and accompanying text.
27. See infra note 266 and accompanying text. Within the Court itself, the ultimate
enforcement mechanism is the necessity of obtaining the concurrence of other Justices.
28. See infra notes 32-253 and accompanying text.
29. See infra notes 32-52 and accompanying text.
HeinOnline --- 62 Tul. L. Rev. 911 (1987-1988)
912
TULANE LAW REVIEW
[Vol. 62
faith in legal positivism. If this cold analytical credo can stoke
the furnace of revolution, more emotionally evocative beliefs
provide even greater impetus to radical change.
This essay concludes with some thoughts on the Supreme
Court's role as a maker of constitutionallaw. 30 In particular,
the structure of the Erie revolution indicates that Supreme Court
decision making is significantly constrained by predominant attitudes in the Justices Class-an elite interpretative community
consisting of lawyers who might become Supreme Court
Justices. 31
II.
SWIFT V. TYSON
A.
Swift and the Blackstone Tradition
The story of Swift v. Tyson 32 has been frequently and intricately recounted. 33 In Swift, Justice Story wrote that the Court
was not bound by state commercial law precedent because judicial decisions are not laws under the Ru1es of Decision Act. 34
"In the ordinary use of language," he explained, "it will hardly
be contended that the decisions of Courts constitute laws. They
are, at most, only evidence of what the laws are, and are not of
themselves laws."35 He saw no significant difference between
state and federal courts insofar as interstate commercial litigation was concerned. The two judiciaries were coequal; they each
based their decisions on the same "general principles and doctrines of commercial jurisprudence. "36 Since the federal courts
30. See infra notes 254-311 and accompanying text.
31. See infra notes 265, 282-304 and accompanying text.
32. 41 U.S. (16 Pet.) 1 (1842).
33. See, e.g., R. NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN
OF THE OLD REpUBLIC 332-43 (1985); Teton, The Story of Swift v. Tyson, 35 ILL. L. REv.
519 (1941); Comment, Swift v. Tyson Exhumed, 79 YALE L.J. 284 (1969). Anyone
interested in Swift must read LaPiana, Swift v. Tyson and the Brooding Omni-presence in
the Sky: An Investigation of the Idea of Law in Antebellum America, 20 SUFFOLK U. L.
REv. 771 (1986), an exceptionally well researched and well conceived article that was
published after the editorial process was completed on the present article.
34. The Act provided:
That the laws of the several states, except where the constitution, treaties or
statutes of the United States shall otherwise require or provide, shall be regarded
as rules of decision in trials at common law in the courts of the United States in
cases where they apply.
The Judiciary Act of 1789, ch. XX, § 34, 1 Stat. 73, 92 (1789).
35. Swift, 41 U.S. (16 Pet.) at 19; accord J. STORY, Value and Importance of Legal
Studies, in THE MISCELLANEOUS WRmNGS OF JOSEPH STORY 503, 506 eN. Story ed.
1852) [hereinafter STORY'S MISC. WRmNGs].
36. Swift, 41 U.S. (16 Pet.) at 19.
HeinOnline --- 62 Tul. L. Rev. 912 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
913
were at least as competent as the state courts to divine and reason from these general principles, the federal courts were not
bound by erroneous state applications of the principles.
Swift's intellectual antecedents are easily traced to William
Blackstone's Commentaries. 37 Story had tremendous respect for
Blackstone,38 and the pertinent language of the Swift opinion
closely tracked Blackstone's model of the common law. Blackstone emphatically denied that judges make law. Instead, they
were "the living oracles"39 of a type of naturallaw. 40 He wrote
that God has ordained a system of "eternal immutable laws of
good and evil."41 Human laws "derive all their force, and all
their authority" from this universal natural law and are invalid if
contrary to naturallaw.42 Turning specifically to England, he
defined the common law as a body of unwritten customs that
receive "their binding power, and the force of laws, by long and
immemorial usage, and by their universal reception throughout
the kingdom."43 This is not to say that he exalted custom over
reason; he equated the two. 44 A judge's task is to discover the
law, and "the principal and most authoritative evidence" of the
common law is the corpus of judicial decisions. 45 Blackstone
was a strong advocate of stare decisis,46 but he admitted an
"exception, where the former determination is most evidently
contrary to reason."47 In these exceptional cases, "the subsequentjudges do not pretend to make a new law, but to vindicate
37. W. BLACKSTONE, COMMENTARIES. Blackstone's explanation of the nature of
judicial precedents can, in turn, be traced back to Matthew Hale and perhaps even Thomas
Hobbes. See E. BODENHEIMER, JURISPRUDENCE 341 n.l (rev. ed. 1974).
38. See e.g., J. STORY, supra note 35, at 503, 547 (The Commentaries are "a work of
. . . singular exactness and perspicacity . . . learned disquisition, and constitutional
accuracy, that ... probably stands unrivalled.").
39. 1 W. BLACKSTONE, COMMENTARIES *69.
40. On the confused inconsistencies in Blackstone's natural law, see McKnight,
Blackstone, Quasi-Jurisprudent, I3 Sw. L.J. 399 (1959); see also Hart, Blackstone's Use of
the Law of Nature, 3 BUTTERWORTHS So. AFR. L. REv. 169 (1956).
41. 1 W. BLACKSTONE, COMMENTARIES *40.
42. leI. at *41. Natural law, however, did not provide an answer to every conceivable
problem. Divine reason was indifferent to many subjects of human law. ld. at *42-*43
(e.g., "exporting of wool into foreign countries"); see also id. at *54-*55.
43. ld. at *64; see also ieI. at *45, *67, *73.
44. "[W]henever a standing rule of law, of which the reason perhaps could not be
remembered or discerned, hath been wantonly broken in upon by statutes or new
resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that
have followed the innovation." ld. at *70; accord id. at *70-*71.
45. ld. at *69; see also ieI. at *63-*64.
46. leI. at *69-*72.
47. leI. at *69.
HeinOnline --- 62 Tul. L. Rev. 913 (1987-1988)
914
TULANE LAW REVIEW
[Vol. 62
the old one from misrepresentation."48 The former decision was
not "bad law"; it simply was "not law" at all. 49
The English colonists brought the common law with them
to America, and the sheer elegance, wonderful organization, and
virtual monopoly of the Commentaries made Blackstone's work
an unquestioned paradigm for early American attorneys.50 Most
of the famous and lesser known American commentators of the
late eighteenth and early nineteenth century embraced Blackstone's oracular model. 51 Thus Story's rationale in Swift drew
upon and contributed to the contemporary mainstream of
American jurisprudence.52
B.
Swift's Imperium
Swift might have been restricted to matters of commercial
law,53 but subsequent courts viewed the doctrine as virtually limitless. 54 By 1932, an able federal judge could write enthusiasti48. Id. at *70.
49. Id. (emphasis original). •
50. See Nolan, Sir William Blackstone and the New American Republic: A Study of
Intellectual Impact, 51 N.Y.U. L. REv. 731 (1976).
51. See, e.g., 1 J. KENT, COMMENTARIES ON AMERICAN LAW *471-*478
[hereinafter KENT'S COMMENTARIES]; J. STORY, supra note 35, at 503; 1 Z. SWIFr, A
SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 41 (1795 & photo. reprint 1972);
J. WILSON, Lectures on Law ch. XII, in 1 THE WORKS OF JAMES WILSON 334 (R.
McCloskey ed. 1967) [hereinafter WILSON'S LECTURES]; see also F. HILLIARD, THE
ELEMENTS OF LAW vi (1835 & photo. reprint 1972). St. George Tucker reprinted
Blackstone's oracular theory without comment. 1 W. BLACKSTONE, COMMENTARIES *69*70 (S. Tucker ed. 1803) [hereinafter TuCKER'S BLACKSTONE]. Foreshadowing the Swift
doctrine, Tucker assumed that diversity of citizenship allowed the United States Supreme
Court to review common law cases coming out of state courts. Id. app. *183-*184.
52. See G. DUNNE, JUSTICE JOSEPH STORY AND THE RIsE OF THE SUPREME
COURT 406-08 (1970); NEWMYER, supra note 33, at 332-43; see also J. FRANK, JUSTICE
DANIEL DISSENTING 168-69 (1964); accord, Guaranty Trust Co. v. York, 326 U.S. 99,10103 (1945). For an able and detailed presentation of this idea, see Fletcher, The General
Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine
Insurance, 97 HARV. L. REV. 1513 (1984); see also Kempin, Precedent and Stare Decisis:
The Critical Years, 1800 to 1850,3 AM. J. LEGAL HIST. 28 (1959).
53. See R. BRIDWELL & R. WHITTEN, THE CoNSTITUTION AND THE COMMON
LAW (1977); K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING ApPEALS 41418 (1960). In the late nineteenth century the Court occasionally suggested that the Swift
doctrine was confined to matters of general commercial law. See, e.g., Stutsman County v.
Wallace, 142 U.S. 293, 306 (1892); Gormley v. Clark, 134 U.S. 338, 348 (1890).
54. The doctrine's various contours and nuances are discussed in Hollingsworth, The
Cases in Which the Federal Courts Do, or Do Not, Follow State Decisions in Matters of
Substantive Law, 35 CENT. L.J. 322 (1892); Moschzisker, The Common Law and Our
Federal Jurisprudence (pt. 2), 74 U. PA. L. REv. 270, 285-90 (1925); Sharp & Brennan, The
Application of the Doctrine of Swift v. Tyson Since 1900, 4 IND. L.J. 367 (1929).
In Erie, Justice Brandeis identified the Courts' inability to distinguish between the
HeinOnline --- 62 Tul. L. Rev. 914 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
915
cally that "[t]he doctrine is now well established ... in matters
of genera11aw such as contracts, agency, negotiable instruments,
insurance, negligence, torts, etc."55 During Swift's first fifty
years there were occasional dissents, but no Justice openly challenged Story's original justification. The oracular rationale was
occasionally reiterated,56 but by the end of the Civil War, adherence to the doctrine usually was justified in terms of stare decisis.57 The occasional dissenter eschewed theory and advanced
pragmatic considerations of policy to justify limitations to Swift.
For example, in 1845 Justice McKinley unsuccessfully argued
that application of Swift to the construction of a will would create an undesirable disuniformity of laws within individual
states. 58
The full Court did not explore the problem of disuniformity
until the early 1880s, when it reconsidered the Swift doctrine in
Railroad Co. v. National Bank 59 and Burgess v. Seligman. 60 Justice Harlan, writing for the majority in Railroad Co., justified the
doctrine almost entirely on stare decisis and Story's original
rationa1e. 61 He also hinted that one of the purposes of diversity
jurisdiction is to afford interstate litigants an unbiased judicial
. provinces of general and local law as Swift's major definitional problem. Erie R.R. v.
Tompkins, 304 U.S. 64, 74 (1938). On this distinction, see Fletcher, supra note 52, at 152738.
The impact of Swift might have been ameliorated by the elusive concept of comity.
See, e.g., Mutual Life Ins. Co. v. Johnson, 293 U.S. 335 (1934), discussed infra note 148;
Burgess v. Seligman, 107 U.S. 20 (1882), discussed infra notes 69-73 and accompanying
text. But critics of Swift viewed comity as inherently unprincipled. See, e.g., Editorial, 8
VA. L. REG. 443 (1902) ("Comity becomes comedy."); accord P. BATOR, P. MISHKIN, D.
SHAPIRO & H. WECHSLER, HART AND WECHSLER'S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 701-02 (2d ed. 1973).
55. Parker, The Federal Jurisdiction and Recent Attacks Upon It, 18 A.B.A. J. 433,
438 (1932); accord McGuire v. Sherwin-Williams Co., 87 F.2d 112, 114 (7th Cir. 1936); see
also Erie, 304 U.S. at 75-76, (citing Sharp & Brennan, supra note 54).
56. Watson v. Tarpley, 59 U.S. (18 How.) 517, 520-21 (1855); Carpenter v.
Providence Wash. Ins. Co., 41 U.S. (16 Pet.) 495, 511-12 (1842) (Story, J.); see also Scott v.
Sandford, 60 U.S. (19 How.) 393, 603 (1856) (Curtis, J., dissenting); Meade v. Beale, 16 F.
Cas. 1283, 1291 (C.C.D. Md. 1850) (No. 9,371) (Taney, C.J.).
57. Oates v. National Bank, 100 U.S. 239, 246 (1879); Boyce v. Tabb, 85 U.S. (18
Wall.) 546, 548 (1873); Supervisors v. Schenck, 72 U.S. (5 Wall.) 772, 784-85 (1866); Lane
v. Vick, 44 U.S. (3 How.) 464, 476-77 (1845); see also Butz v. City of Muscatine, 75 U.S. (8
Wall.) 575, 584 (1869).
58. Lane v. Vick, 44 U.S. at 481-83 (McKinley, J., dissenting); see also Williamson v.
Berry, 49 U.S. (8 How.) 495, 558-59 (1850) (Nelson, J., dissenting).
59. 102 U.S. 14 (1880).
60. 107 U.S. 20 (1882).
61. Railroad Co., 102 U.S. at 29-30,31-32; accord Oates v. National Bank, 100 U.S.
at 246 (Harlan, J.).
HeinOnline --- 62 Tul. L. Rev. 915 (1987-1988)
916
TULANE LAW REVIEW
[Vol. 62
determination of applicable legal principles. 62 Then, almost as
an afterthought, he briefly suggested that Swift might enhance
national uniformity of decision in cases arising under general
principles of law.63
In a concurring opinion, Justice Clifford began and ended
his analysis by justifying Swift solely in terms of a c0mpelling
need for national uniformity of commercial law. 64 "Uniformity
of decision is a matter of great public convenience and universal
necessity, acknowledged by all commercial nations."65 If the
federal courts followed state precedent, the general commercial
law would be fractured into "as many different rules ... as there
are States in the Union."66 Making a uniform national law available to litigants in federal court would prevent a complete balkanization of American law. This adroit use of disuniformity
did not address the problem of conflicting federal and state decisions within a single state. Clifford dismissed this problem of
local disuniformity as only a theoretical objection that would be
mooted by subsequent state court acquiescence in federal
decisions. 67
Two years later the Court in Burgess 68 endorsed a new
explanation of the Swift doctrine. Since Burgess involved a state
62. Railroad Co., 102 U.S. at 33. This notion also appears in the earlier decision of
Pease v. Peck, 59 U.S. (18 How.) 595, 599 (1855).
63. Railroad Co., 102 U.S. at 32. In 1851, Supreme Court Reporter John Wallace
had anticipated this argument. See J. WALLACE, WANT OF UNIFORMITY IN THE
COMMERCIAL LAW BETWEEN THE DIFFERENT STATES OF OUR UNION (1851). Wallace
was disturbed by the state courts' inability to maintain a uniform national law of
commercial transactions. Id. at 17-20. He apparently agreed with Story's analysis in Swift,
id. at 25-26, but he also saw Swift as promoting national uniformity: "A judicial
declaration of the State Courts, that on questions of commercial law they would regard the
decisions of the Federal Judiciary as of binding and superior authority, would do much to
produce a harmony which now exists not at all." Id. at 30. For a sanguine view of the
Supreme Court's influence upon state courts, see Schofield, Uniformity of Law in the
Several States as an American Ideal (pt. 4, State Courts Versus Federal Courts), 21 HARV.
L. REv. 583 (1908); see also Black & White Taxicab & Transfer Co. v. Brown & Yellow
Taxicab & Transfer Co., 276 U.S. 518, 527 (1928). But see Pennsylvania R.R. v. Hughes,
191 U.S. 477, 486 (1903) (recognizing that state courts were not following federal
decisions); Erie R.R. v. Tompkins, 304 U.S. 64, 74 n.7 (1938).
64. Railroad Co., 102 U.S. at 41-42, 58 (Clifford, J., concurring); see also J. DILLON,
THE LAWS AND JURISPRUDENCE OF ENGLAND AND AMERICA 247 (1895) (quoting a
letter, apparently from Clifford, on this point). John Wallace had advanced the same idea
in 1851. See supra note 63.
65. Railroad Co., 102 U.S. at 57-58.
66. Id. at 58.
67. Id. at 41-42, 58; see also supra note 63.
68. 107 U.S. 20 (1882).
HeinOnline --- 62 Tul. L. Rev. 916 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
917
statute69 rather than general common law principles, common
law theory was inapposite. Nevertheless, the Court had on occasion refused to follow state court interpretations of state statutes
and constitutions. 70 In Burgess the Court presented a single
rationale that justified decisional autonomy with respect to both
the common law and state statutes. Justice Bradley explained
that "the very object of giving [diversity jurisdiction] to the
national courts ... was to institute independent tribunals which
it might be supposed would be unaffected by local prejudices and
sectional views."7l Therefore "it would be a dereliction of their
duty not to exercise an independent judgment."n Bradley was
sensitive to the problem of disuniformity between state and federal court decisions and proposed to solve the problem through
comity: "for the sake of harmony and to avoid confusion, the
Federal courts wi11lean towards an agreement of views with the
State courts if the question seems to them balanced with
doubt."73
After Burgess the Court wrote nothing new in defense of
Swift. Notwithstanding powerful positivist attacks mounted by
Justice Field in 189374 and by Justice Holmes in the next century,75 Swift's reign continued unti11938. During the fifty years
before Erie, many felt that Swift was so well entrenched that its
continuance was virtually dictated by stare decisis. 76 In addi69. The case involved shareholders' liability under a Missouri corporation statute.
See Burgess, 107 U.S. at 25-26.
70. The most famous case was Gelpcke v. City of Dubuque, 68 U.s. (1 Wall.) 175
(1863); see also Butz v. City of Muscatine, 75 U.S. (8 Wall.) 575 (1869); Mercer County v.
Hacket, 68 U.s. (1 Wall.) 83 (1863); Rowan v. Runnels, 46 U.S. (5 How.) 134 (1847). The
Court's treatment of this issue in municipal bond cases is discussed extensively in C.
FAIRMAN, RECONSTRUCfION AND REUNION: 1864-88, chs. XVII-XVIII (1971).
71. Burgess, 107 U.S. at 34.
72. ld.
73. ld.
74. See infra note 112 and accompanying text.
75. See infra notes 121-29 and accompanying text.
76. See, e.g., Parker, The Common Law Jurisdiction of the United States Courts, 17
YALE L.J. 1,7 (1907); Scholfield, Swift v. Tyson: Uniformity ofJudge-made State Law in
State and Federal Courts, 4 ILL. L. REv. 533, 551 (1910). Swift's defenders on the Supreme
Court stressed stare decisis. See Black & White Taxicab & Transfer Co. v. Brown &
Yellow Taxicab & Transfer Co., 276 U.S. 518, 530-31 (1928); Baltimore & O. R.R. v.
Baugh, 149 U.S. 368, 370-73 (1893); see also Pana v. Bowler, 107 U.S. 529, 541 (1882);
Railroad Co. v. National Bank, 102 U.S. 14, 29 (1880). Even some who opposed Swift
thought the doctrine was "too strongly imbedded in our law for judicial self-correction."
Campbell, Is Swift vs. Tyson an Argument For or Against Abolishing Diversity ofCitizenship
Jurisdiction?, 18 A.B.A. J. 809, 811 (1932); Frankfurter, Distribution of Judicial Power
Between United States and State Courts, 13 CORNELL L. REv. 499, 529-30 (1928); Sharp &
Brennan, supra note 54, at 385; Comment, Adherence to State Decisions in Federal Courts,
HeinOnline --- 62 Tul. L. Rev. 917 (1987-1988)
918
TULANE LAW REVIEW
[Vol. 62
tion, those who continued to believe that common law judges
merely declare preexisting legal principles remained faithful to
Swift.77 Finally, and without regard to legal philosophy, many
were persuaded by the structural argument that national uniformity of decision could be attained only in the federal courtS. 78
C.
Revisionist Theses
Swift v. Tyson has not been universally perceived as a logical deduction from Blackstone's oracular model. Some twentieth century scholars have attempted, with perhaps unwitting
irony, to explain Swift on the basis of legal positivism. 79 This
effort, however, surely is anachronistic. 80
33 YALE L.J. 855, 859 (1924); cf. Mills, Should Federal Courts Ignore State Laws?, 34 AM.
L. REv. 51, 68-69 (1900) (recommending legislation); Newlin, Proposed Limitations Upon
Our Federal Courts, 15 A.B.A. J. 401, 404 (1929) (recommending legislation); see also supra
note 14 and accompanying text (Erie petitioner's counsel).
77. See, e.g., Beutel, Common Law Judicial Technique and the Law of Negotiable
Instruments-Two Unfortunate Decisions, 9 TuL. L. REv. 64, 66-67 (1934); Eliot, The
Common Law ofthe Federal Courts, 36 AM. L. REv. 498, 521-22 (1902); Parker, supra note
76, at 12-13; Editorial, 41 CENT. L.J. 87 (1895); see also Dent, The Common Law in
Federal Jurisprudence 61 CENT. L.J. 123 (1905). In Black & White Taxicab and Erie,
Swift's defenders subscribed to the oracular model of the common law. Black & White
Taxicab, 276 U.S. at 529-30 ("State and federal courts go to the same sources for evidence
of the existing applicable [common law] rule."); Erie R.R. v. Tompkins, 304 U.S. 64, 83-84
(1938) (Butler, J., dissenting) (quoting Story's original rationale). Judge John Parker began
the ablest modern defense of the Swift doctrine by endorsing the oracular model. Hewlett
v. Schadel, 68 F.2d 502, 504 (4th Cir. 1934); see also Snare & Triest Co. v. Friedman, 169
F. I, 12 (3d Cir. 1909).
78. The most prominent example is the report recommending the creation of the
American Law Institute, Report of the Committee on the Establishment of a Permanent
Organization for the Improvement of the Law Proposing the Establishment ofan American
Law Institute, 1 A.L.I. PROC. 100-01 (1923); accord, J. MOORE, INTERNATIONAL LAW
AND SOME CURRENT ILLUSIONS 333-34 (1924); Beutel, supra note 77, at 68-70; Eliot,
supra note 77, at 523-24; Parker, supra note 76, at 7; Parker, supra note 55, at 438; Yntema,
The Jurisdiction ofthe Federal Courts in Controversies Between Citizens ofDifferent States,
19 A.B.A. J. 71, 74-75 (1933). Although the uniformity argument was virtually ignored by
the Supreme Court, some capable circuit judges found it persuasive. Hewlett v. Schadel, 68
F.2d 502, 504-05 (4th Cir. 1934) (parker, J.); First Nat'l Bank of Shenandoah v. Liewer,
187 F. 16, 19 (8th Cir. 1911) (Sanborn, J.).
79. W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE
UNITED STATES (1953); Scholfield, supra note 76; see also Conant, The Commerce Clause,
the Supremacy Clause and the Law Merchant: Swift v. Tyson and the Unity ofCommercial
Law, 15 J. MAR. L. & COM. 153 (1984). These strange positivist explanations of Swift
would mandate an enormous expansion of the federal courts' lawmaking powers. The
authors cited in this footnote agreed that the federal common law fashioned by the federal
courts should be binding on state courts. In the event, the Supreme Court ruled that
substantive federal decisions under the Swift doctrine were not binding on the state courts.
Delmas v. Insurance Co., 81 U.S. 661, 665-66 (1871); accord Pennsylvania R.R. v. Hughes,
191 U.S. 477, 485-86 (1903).
80. John Wallace thought that a constitutional amendment would be necessary to
HeinOnline --- 62 Tul. L. Rev. 918 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
919
Professor Horwitz has presented the most credible reinterpretation of Swift.81 He contends that during the first half of the
nineteenth century American judges rejected Blackstone's traditional declaratory model in favor of an instrumental view of the
common law. 82 Their purpose was to manipulate the common
law in order to facilitate a redistribution of wealth to the commercial and entrepreneurial class. 83 Given this thesis, the
Supreme Court's unanimous mid-century decision in Swift to
reaffirm the traditional model is "puzzling."84 Professor Horwitz
solves the puzzle by concluding, "Swift v. Tyson cannot be taken
seriously as a simple application of orthodox legal theory"85-in
effect, that Justice Story misrepresented the Court's rationale.86
Horwitz's attack on the traditional account ofSwift is based
upon Justice Story's Commentaries on the Conflict ofLaws, published eight years before Swift. 87 According to Professor Horwitz, Story espoused a "'will' theory of law"88 in the
Commentaries. By "will" theory, he means a definition of law
based upon individual states' egocentric views of appropriate
public policy.89 Since this makes Story a legal positivist, Story
could not "really still have believed [in the oracular model]
when Swift v. Tyson was decided."90 If Story was disingenuous
in Swift, he began weaving his tangled web before publishing the
Conflict Commentaries. In an 1829 address at Harvard University, he explained, "judicial decisions are deemed but the formal
promulgation of rules antecedently existing, and obtain all their
value from their supposed conformity to those rules."91
Story undoubtedly espoused a "will" theory of law in his
Conflict Commentaries,92 but his treatise is notably ambiguous in
regard to the specific problem of resolving an apparent conflict
pennit the federal government to create commercial law binding on the states. J.
WALLACE, supra note 63, at 29; see also De/mas, 81 U.S. at 665-66, discussed supra note 79.
81. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977).
82.
83.
84.
85.
86.
87.
Id. ch. I.
See, e.g., id. at xv-xvi.
Id. at 245.
Id. at 249.
See id. at 245, 248, 249-50.
J. STORY, COMMENTARIES ON THE CONFLICT OF LAWS (1834) [hereinafter
STORY'S CONFLICT OF LAWS].
88. HORWITZ, supra note
89.
90.
91.
92.
81, at 247.
See id. at 247-49.
Id. at 245.
J. STORY, supra note 35, at 503, 506.
M. HORWITZ, supra note 81, at 247.
HeinOnline --- 62 Tul. L. Rev. 919 (1987-1988)
920
TULANE LAW REVIEW
[Vol. 62
between common law decisions of two American jurisdictions.
The book may be read plausibly as dealing only with conflicts
between the laws of civil law jurisdictions, between civil law and
common law, and between statutory laws of common law jurisdictions. For example, the only judicial opinion from the Conflict Commentaries that Professor Horwitz mentions is Saul v.
His Creditors,93 involving a conflict between Louisiana civil law
and Virginia law. Since Story did not overtly address the problem of conflicting common-law decisions,94 the treatise provides
no direct evidence of his thoughts on the Swift paradigm of a
purely common-law conflict. Nor is it proper to extrapolate
Story's thoughts on purely common-law conflicts from his Conflict Commentaries. In fact, Story probably did not apply his
"wilJH theory to the common law. Blackstone clearly understood the common law to be a type of natural law system,95 but
he maintained a rigid positivist attitude toward statutory law. 96
This same blending of common and statutory law theories was
adopted by other early American thinkers97 and easily harmonizes the Conflict Commentaries with the Swift opinion.
Although Professor Horwitz's explanation of Swift is deeply
flawed, his principal thesis that early and middle nineteenth century judges had an instrumental judicial philosophy is undiminished. Blackstone's model fundamentally equated law and
reason, adding only the significant limitation that judges must
93. 5 Mart. (n.s.) 569 (La. 1827), quoted in M. HORWITZ, supra note 81, at 247.
94. Another passage from Story's treatise seems to lend further support to Professor
Horwitz's thesis: "Indeed, the courts of every country must be presumed to be the best
expositors of their own laws, and of the terms of contracts made with reference to them.
And no court on earth, professing to be governed by principle, would assume the power to
declare, that a foreign Court misunderstood the laws of their own country, or the operation
of them on contracts made there." STORY'S CONFLIcr OF LAWS, supra note 87, § 277, at
231. But the two cases that Story cites in support of this passage involved the construction
of a state statute and the application of Louisiana civil law. Elmendorf v. Taylor, 23 U.S.
(10 Wheat.) 152, 159 (1825); Saul v. His Creditors, 5 Mart. (n.s.) 569 (La. 1827).
95. See supra notes 38-48 and accompanying text.
96. Blackstone defined statutory law as "a rule of civil conduct prescribed by the
supreme power in a state, commanding what is right and prohibiting what is wrong." 1 W.
BLACKSTONE, COMMENTARIES *44. He then relentlessly deduced the ultimate positivist
nightmare: "if the parliament will positively enact a thing to be done which is
unreasonable, I know of no power ... [that can] control it." Id. at *91.
97. See 1 KENT'S COMMENTARIES, supra note 51, lectures XX-XXI; 1 Z. SWIFT,
supra note 50, at 1-54. Professor Horwitz notes that the only American treatise on the
conflict of laws antedating Story's volume was restricted to conflicting statutes. M.
HORWITZ, supra note 81, at 246-47, discussing, S. LIVERMORE, A DISSERTATION ON
QUESTIONS WHICH ARISE FROM CONTRARIETY OF THE PosmVE LAWS OF DIFFERENT
STATES AND NATIONS (1828).
HeinOnline --- 62 Tul. L. Rev. 920 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
921
conform their decisions to longstanding custom and prior precedent. But in early nineteenth century America, the restraints of
prior American precedent and immemorable American custom
did not exist. When the oracular model is stripped of Blackstone's conservative limitations, the only thing left is reasonmore specifically, the reason of the judges who decide the cases.
What could be more instrumental and flexible than a theory that
in effect directs individual judges to fashion rules of decision
based on their individual standards of reason?98 The result may
be a corpus of common law favoring some groups over others.
But this lawmaking was not a cynical exercise of unbridled discretion to further the otherwise undeserving interests of particular power groups. The judges' instrumental lawmaking was
dictated by their personal assessments of what was reasonable.
III.
LEGAL POSITIVISM AND THE ERIE REVOLUTION
A. The Rise ofLegal Positivism
Even before Swift was decided, the cause of its eventual
destruction emerged in England with the publication of John
Austin's initial lectures on jurisprudence.99 Austin defined law
exclusively in terms of the command of a sovereign.l°O The system of positive laws set by the sovereign reflected the sovereign's
particular understanding of appropriate public policy. 101
98. Unlike Blackstone, Story and other Americans had a progressive view of the
common law. See infra notes 196-97 and accompanying text. In J. STORY, Codification of
the Common Law: Report ofthe Commissioners Appointed to Consider and Report upon the
Practicability and Expediency ofReducing to a Written and Systematic Code the Common
Law ofMassachusetts, in STORY'S MIsc. WRmNGS, supra note 35, at 698, Story explained,
"the common law ... is rather a system of elementary principles and of general juridical
truths, which are continually expanding with the progress of society." Id. at 702; see also J.
STORY, Progress ofJurisprudence: An Address Delivered Before the Members ofthe Suffolk
Bar, in STORY'S MIsc. WRmNGS, supra note 35, at 198; J. STORY, supra note 35, at 503,
526.
99. J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1st ed. 1832).
Austin wrote under the influence of Jeremy Bentham. See W. MORISON, JOHN AUSTIN 3848 (1982). Bentham believed thatjuclges made law rather than reasoned from natural law
principles. See, e.g., J. BENTHAM, Truth versus Ashhurst, in 5 THE WORKS OF JEREMY
BENTHAM 233, 235 (J. Bowring ed. 1840). Nevertheless, Bentham excoriated the common
law as "dog law" (id.) and concentrated on legislation and codification. Austin's work
warmly embraced the common law and perhaps for that reason has been more influential in
common law countries. See 2 J. AUSTIN, LECTURES ON JURISPRUDENCE 217-18 & 348
(1863) (rejecting Bentham's criticism of the common law) [hereinafter AUSTIN'S
LECTURES].
100. AUSTIN'S PROVINCE, supra note 99, at I & V. He expressly rejected
Blackstone's oracular theory. Id. at 164.
101. See, e.g., 2 AUSTIN'S LECTURES, supra note 99, at 337-38 in which Austin
HeinOnline --- 62 Tul. L. Rev. 921 (1987-1988)
922
TULANE LAW REVIEW
[Vol. 62
Finally, Austin clearly stated that the common law is a system of
positive laws set by the sovereign using the medium of judicial
opinions. In other words, the judicial branch of governmentlike the legislative-performs a lawmaking function. 102
Notwithstanding Austin's lectures, Blackstone's declaratory model continued to dominate the American legal profession's (or at least the federal COurtS'103) understanding of the
proper resolution of cases like Swift.104 But the seeds of legal
positivism were quickly planted in the fertile minds of men who
were to become influential attorneys and scholars. In 1885 and
1886, David Dudley Field attacked Swift in a lengthy American
Bar Association study of delay and uncertainty in the law. lOS He
explains, "where the judge [who is the sovereign's delagee oflegislative authority] makes a
judiciary rule, he may build it on [inter alia] his own views of what law ought to be (be the
standard which he assumes, general utility or any other)"; see also AUSTIN'S LECTURES,
supra note 99, Lecture XXXII. See generally AUSTIN'S PROVINCE, supra note 2, lectures
III & IV; see also id. at 147-48 n.·.
102. Id. at 22-25, 148-49, 209. Austin's detailed explanation and description of
judicial lawmaking appears in AUSTIN'S LECTURES, supra note 99, Lectures XXVII-XXX,
XXXII, XXXIII, XXXVII, XXXVIII, XXXIX. Austin's ideas on judge-made law are
ably discussed in W. RUMBLE, THE THOUGHT OF JOHN AUSTIN 109-43 (1985).
103. During the ninety-six years between Swift and Erie, only three lower federal
courts published opinions criticizing the Swift doctrine. See Cole v. Pennsylvania RR, 43
F.2d 953, 956-57 (2d Cir. 1930); Kuhn v. Fairmont Coal Co., 179 F. 191, 210 (4th Cir.
1910); Turk v. Newark Fire Ins. Co., 4 F.2d 142, 145 (E.D. Pa. 1925); see also Hartford
Fire Ins. Co. v. Chicago Milwaukee & St. P. Ry., 70 F. 201, 208-09 (8th Cir. 1895)
(Caldwell, J., dissenting).
In the nineteenth century, the state courts seldom discussed Justice Story's rationale in
Swift. Even when state judges expressly addressed the Swift rationale, they were reluctant
to criticize. See Gatton v. Chicago, RI. & P. Ry., 5 Iowa 112, 63 N.W. 589, 596-601
(1895); Storm v. Waddell, 2 Sand. Ch. 494, 509-10 (N.Y. 1845). A few courts quoted
Swift's oracular rationale with apparent approval. See Town of Weston v. Ralston, 48 W.
Va. 170, 176,36 S.E. 446, 454 (1900); Coleman v. Newby, 7 Kan. 55, 60-61 (1871); see also
Bond v. Central Bank of Ga., 2 Ga. 92, 104-05 (1847).
A number of state courts used Story's rationale to resolve choice of law problems. See,
e.g., Roads v. Webb, 91 Me. 406, 407, 40 A. 128, 130 (Me. 1898); St. Nicholas Bank v.
State Nat'l Bank, 27 N.E. 849, 851 (N.Y. 1891); Faulkner v. Hart, 82 N.Y. 413, 418-19
(1880) (quoting Swift); Franklin v. Twogood, 25 Iowa 520, 531 (1868); (relying upon Swift
doctrine). A major exception was Forepaugh v. Delaware, L. & W. R. Co., 128 Pa. 217,
218, 18 A. 503, 504-05 (1889), in which the court launched a forceful and detailed positivist
attack upon the Swift rationale. By 1931, the situation had changed. An A.L.R annotator
confidently pronounced that Forepaugh's positivist analysis was the "orthodox rule"
regarding choices of common law. Annotation, supra note 3, at 899. The older, oracular
approach had become the "insurgent rule." Id. at 912.
104. See supra notes 53-78 and accompanying text. Most American attorneys of the
nineteenth and twentieth centuries undoubtedly had and have not the slightest knowledge
of John Austin.
105. A.B.A., REPORT OF THE SPECIAL COMMITTEE ApPOINTED To CoNSIDER
AND REpORT WHETHER THE PRESENT DELAY AND UNCERTAINTY IN JUDICIAL
ADMINISTRATION CAN BE LESSENED, AND IF SO, By WHAT MEANS [hereinafter
HeinOnline --- 62 Tul. L. Rev. 922 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
923
derided Blackstone's theory:
The notion that common law is something floating in the
atmosphere, visible only to the initiated, is one of those mythical phantasms which serve to amuse and deceive indolent credulity. Where, then, is this common law to be found? In the
decisions of judges, and there only.l06
In an address delivered the next year, Field explicitly linked this
critique to Austin. l07 He also stated the corollary that "common
law is not the same everywhere; there is a common law of England, a common law of Massachusetts, and a common law of
Pennsylvania, and these differ from one another in important
particulars."los
Although Field was speaking generally to the need for a
codification of substantive law, he critically described the
Supreme Court's reaffirmation of Swift in Railroad CO.l09 as a
leading example of chaos in the common law. 110 In a subsequent
defense of his criticism, Field outlined the definitive positivist
critique of the Swift doctrine. As one of Field's colleagues wrote
of this attack:
Mr. Field, on the other hand, denies the soundness of the decision [reaffirming Swijt]. He insists that there is no such thing
as an American common law, as distinguishable from the common law of the several States. The Supreme Court seems to
affirm, which he denies, that there is a general commercial law
existing throughout the Union. He maintains that the case in
hand having arisen on a contract made in New York, and to be
performed in New York, can be judged by no other law than
the law of New York .... 111
REpORT ON UNCERTAINTY] reprinted in 8 A.B.A. PROC. 74-77 (1884). The committee
consisted of chairman Field, John F. Dillon, and three others. J. DILLON, supra note 64, at
245 n.2. The report was signed by Field and Dillon (8 A.B.A. PROC. at 364) but was
mainly written by Field. Id. at 244.
106. REpORT ON UNCERTAINTY, supra note 105, at 347. For a much earlier
statement of Field's understanding that the common law is legislated by judges, see D.
FIELD, Reform in the Legal Profession and the Laws, in 1 SPEECHES, ARGUMENTS, AND
MISCELLANEOUS PAPERS OF DUDLEY FIELD 494, 512-13 (A. Sprague ed. 1884)
[hereinafter FIELD'S SPEECHES].
107. D. FIELD, Address before the Law Academy of Philadelphia, in 3 SPEECHES,
ARGUMENTS, AND MISCELLANEOUS PAPERS OF DAVID DUDLEY FIELD 244,250-51 (f.
Coan ed. 1890) [hereinafter FIELD'S MISC. PAPERS].
108. Id. at 246.
109. See supra notes 58-66 and accompanying text.
110. REpORT ON UNCERTAINTY, supra note 105, at 351, discussing Railroad Co. v.
National Bank, 102 U.S. 14 (1880).
111. J. DILLON, supra note 64, at 247. Dillon stated Field's argument based
evidently upon Dillon's and Field's mutual participation on the A.B.A. Committee on
HeinOnline --- 62 Tul. L. Rev. 923 (1987-1988)
924
TULANE LAW REVIEW
[Vol. 62
A few years later, Field's brother, Stephen, reiterated this critique in a lone dissent from the Supreme Court's extension of
Swift to tort law. l12
Austin's ideas also influenced John Chipman Gray 1l3 and
Oliver Wendell Holmes Jr.,1l4 who were the immediate intellectual architects of Swift's eventual demise. 115 Before joining the
United States Supreme Court, Holmes already had wholeheartUncertainty. See supra note 105. For an earlier statement of the positivist critique, see
Hornblower, COl'.jlict Between Federal and State Decisions, 14 AM. L. REv. 211, 224-26
(1880); see also Heiskell, Conflict Between Federal and State Decisions, 16 AM. L. REv. 743,
760 (1882).
112. Baltimore & O. R.R. v. Baugh, 149 U.S. 368, 391-411 (1893) (Field, J.,
dissenting). The gist of Justice Field's dissent was
The law of the State on many subjects is found only in the decisions of its courts,
and when ascertained and relating to a subject within the authority of the State to
regulate, it is equally operative as if embodied in a statute, and must be regarded
and followed by the federal courts in determining causes of action affected by it
arising within the State. For those courts to disregard the law of the State as thus
expressed upon any theory that there is a general law of the country on the
subject at variance with it ... would be nothing less than an attempt to control
the State in a matter in which the State is not amenable to Federal authority.
Id. at 397 (citations omitted).
113. Professor Gray read the lectures in the early 19508 and for the rest of his long
career the subject "seldom" left his mind. J. GRAY, THE NATURE AND SOURCES OF THE
LAW vii (2d ed. 1921) (first sentence of preface to first edition); accord, Gray, Some
Definitions and Questions in Jurisprudence, 6 HARV. L. REv. 21 (1892).
114. Justice Holmes read Austin five times between 1863 and 1871 and in later years
remembered the lectures as one of the few valuable works on jurisprudence available during
his early career. M. HOWE, JUSTICE OLIVER WENDELL HOLMES: THE SHAPING YEARS
1841-1870, at 194 (1957); O. HOLMES, Introduction to the General Survey, in O. HOLMES,
COLLECTED LEGAL PAPERS 298, 301 (1921) [hereinafter HOLMES' COLLECTED LEGAL
PAPERS]. By the early 1870s, Holmes was recommending Austin's works to American
lawyers. Book Notice, 5 AM. L. REv. 715 (1871); Summary of Events, 7 AM. L. REv. 579
(1873); see also Holmes, The Path of the Law, 10 HARV. L. REv. 456, 465 (1897); O.
HOLMES, The Bar as a Profession, in HOLMES' COLLECTED LEGAL PAPERS, supra, at 153
& 157. Holmes' acceptance of Austin's work was not uncritical. See Holmes, Codes, and
the Arrangement ofthe Law, 5 AM. L. REV. 1,4-5 (1870); Holmes, Book Notice, 6 AM. L.
REv. 723 (1872); Holmes, Book Notice, 6 AM. L. REv. 134 (1871). But he clearly was a
legal positivist in his analysis of Swift v. Tyson. See infra notes 115-25 and accompanying
text; accord 1 M. HOWE, supra, at 194 ("The Austinian strain in Holmes's thought was
vigorous and persistent."); see also generally H. POHLMAN, JUSTICE OLIVER WENDELL
HOLMES & UTILITARIAN JURISPRUDENCE (1984).
115. For Holmes' attack, see infra note 116. Gray's attack on Swift was mounted in
J. GRAY, supra note 113, at 248-59. Gray's critique was cited with obvious approval in
Erie R.R. v. Tompkins, 304 U.s. 64, 72 n.3 (1938); see also Kuhn v. Fairmont Coal Co.,
215 U.S. 349, 371 (1909) (Holmes, J., dissenting); Letter from Holmes to Sir Frederick
Pollock (Jan. 7, 1909), reprinted in HOLMES-POLLOCK LETTERS 157-58 (M. Howe ed.
1941). Gray expressly linked his attack on Swift to the general question whether judicial
decisions are sources ofIaw. J. GRAY, supra note 113, at 254; see also Letter From John
Chipman Gray to President Eliot (Jan. 8, 1883), quoted in M. HOWE, JUSTICE OLIVER
WENDELL HOLMES: THE PROVING YEARS 1870-1882, at 158 (1963).
HeinOnline --- 62 Tul. L. Rev. 924 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
925
edly embraced the idea that common-law judges make law 116
and had emphatically rejected Blackstone's model. 117 He viewed
judicial legislation as being appropriately based upon judicial
perceptions of contemporary public policy. lIS
When Holmes moved from the Superior Court of Massachusetts to the Supreme Court of the United States, he had to
grapple directly with the Swift doctrine. 119 His reaction to this
"very fishy principle started by Story"120 was predictable. After
a few rehearsals,121 he launched a final, devastating attack in
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer CO.122 The reasoning was pure legal positivism.
Consistent with Austin's exclusive definition of the law in terms
of commands of a sovereign, Holmes wrote that:
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. 123
Also consistent with Austin, Holmes saw state supreme courts
116. Holmes' early thoughts on judicial legislation appear in Codes, and the
Arrangement of the Law, supra note 114, at 1; Book Notice, supra note 114; see also O.
HOLMES, THE COMMON LAW 120, 126-30 (M. Howe ed. 1963); Gray, supra note 113, at
31 n.l (alluding to Holmes' private thoughts on judicial legislation).
117. See, e.g., Holmes, The Path of the Law, supra note 114, at 465-68.
118. Id.; O. HOLMES, supra note 116, at 5,31-32.
119. His edition of Kent's Commentaries, published in 1873, suggests a much earlier
disagreement with Swift. See T. FREYER, supra note 10, at 86-87.
120. Letter from Holmes to Sir Frederick Pollock, supra note 115, at 157.
121. See Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-72 (1910) (Holmes, J.,
dissenting), discussed in Letter from Holmes to Sir Frederick Pollock, supra note 115, at
157-58; see also Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J.,
dissenting); Letter from Holmes to Harold Laski (Jan. 29, 1926), reprinted in 2 HOLMESLASKI LETTERS 822-24 (M. liowe ed. 1953).
The Southern Pacific case is famous for Holmes' powerful statement that "The
common law is not a brooding omnipresence in the sky but the articulate voice of some
sovereign or quasi-sovereign that can be identified." 244 U.S. at 222. Holmes was
justifiably proud of this aphorism. See, e.g., Letter from Holmes to Harold Laski, supra, at
822; Letter from Holmes to Sir Frederick Pollock (Feb. 17, 1928), reprinted in 2 HOLMESPOLLOCK LETTERS, supra note 115, at 214, 215. He apparently borrowed the imagery
from David Dudley Field. See text accompanying supra note 106. Field may have been
inspired by John Austin's criticism that "this was a childish fiction employed by our judges,
that judiciary or common law is not made by them, but is a miraculous something made by
nobody, existing, I suppose, from eternity, and merely declared time to time by the judges."
2 J. AUSTIN, LECfURES ON JURISPRUDENCE 634 (R. Campbell 5th ed. 1885), quoted in D.
FIELD, supra note 107, at 244, 250-51.
122. 276 U.S. 518 (1928), discussed in Letter from Holmes to Sir Frederick Pollock,
supra note 121, at 214-16.
123. Id. at 533.
HeinOnline --- 62 Tul. L. Rev. 925 (1987-1988)
926
TULANE LAW REVIEW
[Vol. 62
as the authoritative legislators of state common law. A state
court does not simply find the common law or look to general
principles "outside of and independent of [the state court]"; it
legislates the state's common law. 124 Given this positivist analysis, the federal courts' claimed authority to make independent
determinations of common law was an oxymoron. In an earlier
letter, Holmes succinctly summarized the argument: "the State
judges and the State legislatures make the State law-we
don't." 125
Mere logical inconsistency could not have been a compelling argument to the man who had written, "The life of the law
has not been logic."126 Capable advocates for a broad application of the Swift doctrine could and did adduce reasons of policy
for continuing the doctrine. 127 Holmes, however, did not see the
issue as turning on the simple balancing of conflicting policy.
Because he perceived the formulation of common law rules of
decision as a legislative process, he condemned Swift's imperium
as more fundamentally unsound. "[T]he fallacy [of Swift's
rationale] has resulted in an unconstitutional assumption of
power by the Courts of the United States."128 The federal courts
were legislating in areas that were left by the Constitution to the
exclusive control of the states. 129
124. Id. at 535. In a private letter, Holmes explained, "The question of what is the
law of Massachusetts or of Louisiana is a matter that Mass. or La. has a right to determine
for itself, and that being so, the voice of the state should be obeyed as well when it speaks
through its Supreme Court as it would be if it spoke through its Legislature." Letter from
Holmes to Sir Frederick Pollock, supra note 121, at 215.
125. Letter from Holmes to Sir Frederick Pollock, supra note 115, at 157.
126. O. HOLMES, supra note 116, at 5; see also Holmes, Book Notice, 14 AM. L. REv.
233, 234 (1880) (earlier statement).
127. Swift still was viewed by some as a means of obtaining a national uniform law.
In addition, the federal courts' independent judgment regarding common law principles
was viewed as a significant weapon for combatting local prejudice. The availability of this
forum of neutral principles would encourage interstate investment. Finally, the federal
courts' autonomy facilitated the adjustment of general common law principles to meet
changing needs of society. See T. FREYER, supra note 10, at 110-11, 118-19 (citing and
.
discussing Swift's defenders).
128. Black & White Taxicab, 276 u.s. at 533. The pre-Erie history of this
constitutional argument is admirably developed in T. FREYER, supra note 10, at 82-100,
106-11.
129. Black & White Taxicab, 276 u.S. at 535; see also Kuhn v. Fairmont Coal Co.,
215 U.S. 349, 372 (1910) (Holmes, J., dissenting); accord Letter from Harlan Stone to
Holmes (April 2, 1928) ("It really seems shocking that we should allow our jurisdiction to
be used to set aside a well settled local policy like this."), quoted in T. FREYER, supra note
10, at 120. Holmes indicated, however, that he would "leave Swift [itself] undisturbed."
Black & White Taxicab, 276 U.S. at 535. Perhaps this was a ploy to gain the support of
fellow Justices who would not vote to overrule Swift but who might be persuaded to oppose
HeinOnline --- 62 Tul. L. Rev. 926 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
927
But Holmes' shattering critique was written in dissent.
Swift survived and stumbled forward for a few more years before
it finally was vanquished in Erie. I30 Erie, itself, was intellectually anticlimactic. The Court simply overruled Swift for the reasons previously adduced by Holmes and others. I3I
B.
Explaining Erie
In seeking an understanding of the rise and fall of Swift,
there is a temptation to explain the epic exclusively in terms of
policy considerations like the need for a uniform national commerciallaw, the desirability of uniform decision making by federal and state courts within a particular state, the
discouragement of forum shopping, or some other consideration.
For example, within months of Erie, a capable scholar wrote, "It
is quite clear that in the last analysis it was considerations of
policy, rather than juristic symmetry, that were responsible for
the decision in the Tompkins case, as they were in Swift v.
Tyson."132 This analysis, however, finds little historical support.
The Supreme Court's major opinions from Swift to Erie tell
a story of change based upon technical definitions of law. 133 Of
course the text of judicial opinions cannot always be taken at
face value. Nevertheless, in seeking to understand a decision we
the doctrine's further expansion. In addition, Holmes might have viewed Swift itself as
constitutional on the basis of seventy years of congressional acquiesence in the doctrine as
applied to interstate disputes involving commercial law. See Friendly, In Praise ofErieand of the New Federal Common Law, 19 REc. N.Y. CITY BAR Ass'N 64, 69-70 (1964)
(presenting the argument of congressional adoption but not attributing the argument to
Justice Holmes). In Hammer v. Dagenhart, 247 U.S. 251, 277-81 (1918) (Holmes, J.,
dissenting), Holmes espoused an expansive view of Congress' legislative authority under the
commerce clause; see also F. FRANKFURTER, MR. JUSTICE HOLMES AND THE SUPREME
COURT 91-101 (2d ed. 1961). Justice Brandeis subsequently wrote that it was "this
assumption of power by the Court, not by Congress, which Mr. Justice Holmes declared to
be unconstitutional." T. FREYER, supra note 10, at 141 (quoting unpublished draft
footnote to the Erie opinion); accord Letter from Harlan Stone to Louis Brandeis (Mar. 25,
1938), quoted in A. MAsON, HARLAN FISKE STONE: PILLAR OF THE LAW 479 (1968);
Letter from Harlan Stone to Felix Frankfurter (April 29, 1938), quoted in A. MASON,
supra, at 479-80.
130. See P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, supra note 54, at
701-02.
131. See supra note 17 and accompanying text.
132. Shulman, The Demise of Swift v. Tyson, 47 YALE L.J. 1336, 1346 (1938); see
also McCormick & Hewins, The Collapse of "General" Law in the Federal Courts, 33 ILL.
L. REv. 126, 133-36 (1938).
133. See also Guaranty Trust Co. v. York, 326 U.S. 99, 101 (1945) (Erie "overruled a
particular way of looking at law.").
HeinOnline --- 62 Tul. L. Rev. 927 (1987-1988)
928
TULANE LAW REVIEW
[Vol. 62
surely should begin with the text. 134 In Erie, Justice Brandeis
addressed the problems of disuniformity of decision and discrimination by noncitizens against citizens. 135 He specifically noted,
however, that these considerations were insufficient to justify the
"abandon[ment of] a doctrine so widely applied throughout
nearly a century."136 He then presented the positivist analysis 137
that "compel[led the Court] to"138 overrule Swift. This statement was more than a rhetorical flourish. In private correspondence explaining the Erie decision, Justice Stone wrote, "We
have often refused to disturb statutory construction, especially in
procedural matters so long settled. [Therefore t]he only possible
justification [for overruling Swift] is that the Court itself has
been acting unconstitutionally."139 The positivist belief that
judges make law is a sine qua non to this constitutional
argument.140
If the Justices were misrepresenting the actual basis for
134. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L.
REv. 527, 535 (1947) ("Though we may not end with the words in construing a disputed
statute, one certainly begins there."); see also Hill, The Erie Doctrine and the Constitution,
53 Nw. U.L. REv. 427, 439 (1958) ("At the outset, it is difficult to view as dictum the
Court's statement of a legal proposition without which, we are assured in the opinion, and
have no reason to doubt, the case would have been decided the other way.").
135. Erie, 304 U.S. 64, 74-78. In the first part of the decision, he described Swift as
based on the oracular theory. Id. at 71-72 (quoting Story's original opinion).
136. Id. at 77. In an extensive footnote Brandeis recognized the existence of policy
reasons supporting continuation of the Swift doctrine. Id. at 77 n.22.
137. Brandeis began the crucial part of his analysis by flatly pronouncing that,
"[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law
to be applied in any case is the law of the State. And whether the law of the State shall be
declared by its Legislature in a statute or by its highest court in a decision is not a matter of
federal concern." Id. at 78. He emphasized the positivist nature of his analysis by quoting
Justice Holmes' dissenting opinion in Black & White Taxicab:
[L]aw 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. . .. [1]he authority and only authority is
the State, and if that be so, the voice adopted by the State as its own [whether it be
of its Legislature or of its Supreme Court] should utter the last word.
Id. at 79 (brackets by Justice Brandeis).
138. Id. at 78.
139. Letter from Harlan Stone to Felix Frankfurter, supra note 129, at 479-80; accord
Harlan Stone to Louis Brandeis, supra note 129, at 480; Letter from Harlan Stone to Louis
Brandeis (Mar. 25, 1938), quoted in T. FREYER, supra note 10, at 138; Justice Brandeis had
advocated this same approach to stare decisis in Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 406 (1932) (Brandeis, J., dissenting), and the process of drafting the Erie opinion
indicates that he agreed that the constitutional argument was crucial. See T. FREYER,
supra note 10, at 131-42.
140. See supra notes 128-29 and accompanying text.
HeinOnline --- 62 Tul. L. Rev. 928 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
929
their decisions, the hoax was perpetrated with remarkable consistency. From Swift through Erie, Justices almost invariably
explained their decisions in terms of oracular or positivist jurisprudence. 141 In Erie, Justice Butler filed an extensive dissenting
opinion defending Swift on the basis of stare decisis and Story's
original rationale. 142 If the dispute really was over policy, surely
he would have indicated the considerations of policy supporting
the traditional doctrine. 143 He did not. In a concurring opinion,
Justice Reed agreed that Swift should be overruled but based his
decision entirely upon statutory interpretation unaided by arguments of unconstitutionality. 144 He would have been the logical
person to eschew positivism in favor of practical considerations
of policy. Instead, he based his decision almost entirely upon
legal positivism. 145 Finally, the known private correspondence
of the Justices who abhorred the Swift doctrine tells a story of
legal positivism. 146
Because the majority and concurring opinions in Erie portrayed the case as a dispute over the definition of law and the
dissenters agreed, there is a reasonable basis for concluding that
the case involved a clash of antithetical definitions-or to use
141. In addition to Swift and Erie, see Black & White Taxicab & Transfer Co. v.
Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518 (1928); Kuhn v. Fairmont Coal
Co., 215 U.S. 349 (1910); Railroad Co. v. National Bank, 102 U.S. 14 (1880) (majority
opinion). The only exception is Justice Clifford's concurring opinion in Railroad Co. See
supra notes 64-68 and accompanying text. In contrast, Justice Harlan's majority opinion in
Railroad Co. emphasized the declaratory model of the common law and gave only passing
consideration to Clifford's justification. See supra notes 62-64 and accompanying text.
Except for two isolated opinions in First Nat'l Bank of Shenandoah v. Liewer, 187 F. 16, 19
(8th Cir. 1911) and Bank of Saginaw v. Title & Trust Co., 105 F. 491, 493 (C.C.W.D. Pa.
1900), the lower federal courts ignored Justice Clifford's alternate rationale.
142. Erie, 304 U.S. at 80-90.
143. These considerations are presented in the materials cited in the majority
decision. [d. at 77 n.22.
144. [d. at 90. See Letter from Stanley Reed to Louis Brandeis (Mar. 21, 1938),
quoted in T. FREYER, supra note 10, at 136.
145. Erie, 304 U.S. at 91 ("As the majority opinion shows, by its reference to Mr.
Warren's researches and the first quotation from Mr. Justice Holmes, that this Court is
now of the view that 'laws' includes 'decisions,' it is unnecessary to go further and declare
that the 'course pursued' was 'unconstitutional,' instead of merely erroneous.").
146. This certainly is true of Justice Holmes' correspondence. See supra notes 120-25
and accompanying text; see also Letter from Felix Frankfurter to Harlan F. Stone (May 9,
1938), quoted in T. FREYER, supra note 10, at 158; Letter from Harlan Stone to Felix
Frankfurter, supra note 129, at 480-81; Letter from Harlan F. Stone to Louis D. Brandeis
(Mar. 25, 1938), quoted in T. FREYER, supra note 10, at 138; Letter from Louis D. Brandeis
to Stanley Reed (March 24, 1938), quoted in T. FREYER, supra note 10, at 136; Letter from
Harlan F. Stone to Louis D. Brandeis (Mar. 23, 1938), quoted in T. FREYER, supra note 10,
at 137-38; Letter from Harlan F. Stone to Oliver w. Holmes, Jr., supra note 129.
HeinOnline --- 62 Tul. L. Rev. 929 (1987-1988)
930
TULANE LAW REVIEW
[Vol. 62
Professor Shulman's phrase, a matter of "juristic symmetry."147
When this same analysis is found in most of the Court's other
opinions written on the road from Swift to Erie and is repeated
in the Justices' private correspondence, the conclusion becomes
more certain. In the absence of credible evidence that the Justices' opinions misrepresented their underlying motivation, the
Erie Revolution is best understood in terms of a conflict between
antithetical definitions of law.
IV.
DYNAMICS OF THE ERIE REVOLUTION
Although the error in Swift was perfectly obvious to legal
positivists in 1885, 1893, 1910, and 1928, the profession in general, or at least a majority of the Supreme Court, adhered to the
traditional doctrine. Swift's dethronement did not take place
until the Court's makeup became predominantly positivist.
When this occurred on October 4, 1937, Swift was doomed. 148
As early as 1893, Justice Field predicted this end: "I have an
abiding faith that [Swift], like other errors, will, in the end 'die
147. See supra note 132 and accompanying text.
148. For a brief period between June 2, 1930 when Justice Roberts replaced Justice
Sanford (281 U.S. at iii, n.3) and January 12, 1932 when Justice Holmes resigned (284 U.S.
at iii, n.2), there was a bare majority of five justices (Holmes, Stone, Brandeis, Hughes, and
Roberts) who favored overruling Swift. But Swift, for unknown reasons, was not
reconsidered during this final year and a half of Holmes' tenure. Perhaps an appropriate
petition was not filed. In addition, Holmes' developing infirmity may have deprived the
majority of their natural leader. See C. HUGHES, THE AUTOBIOGRAPHICAL NOTES OF
CHARLES EVANS HUGHES 299 (D. Danelski & J. Tulchin ed. 1973) (A friend admits that
Holmes "was slipping" as early as the beginning of the 1931 October term.). Holmes was
replaced by Justice Cardozo on March 14, 1932 (285 U.S. at iii, n.2), but Cardozo never
addressed Swift's continuing validity. He seems to have advocated a middle position based
upon comity. See Mutual Life Ins. Co. v. Johnson, 293 U.S. 335 (1934); see also Clark,
State Law in the Federal Courts: The Brooding Omnipresence a/Erie v. Tomkins, 55 YALE
L.J. 267, 295-96 (1946). Cardozo was ambivalent about Austin. B. CARDOZO, THE
NATURE OF THE JUDICIAL PROCESS 124-41 (1921). During virtually all of Cardozo's
tenure, the Court consisted of four justices who supported Swift (Van Devanter,
McReynolds, Butler, and Sutherland), four who wanted the doctrine overruled (Stone,
Brandeis, Hughes, and Roberts), and Cardozo. In a series of compromises probably
brokered by Cardozo, the Court attained unanimity in three opinions that followed state
court pronouncements without challenging Swift. Mutual Life Ins. Co. of New York v.
Johnson, 293 U.S. 335 (1934); Burns Mortgage Co. v. Fried, 292 U.S. 487 (1934); Hawks v.
Hamil, 288 U.S. 52 (1933).
If Cardozo was indeed a swing vote, an opportunity to overrule Swift did not reoccur
until October 4, 1937 when Justice Black replaced Van Devanter. 302 U.S. at iii n.3. Black
was a populist who also subscribed to the positivist critique. See Black, Address by Mr.
Justice Black, 13 Mo. B.J. 173, 175 (1942); New York Life Ins. Co. v. Gamer, 303 U.S.
161, 172 (1938) (Black, J., dissenting). He almost certainly was influenced by Holmes'
thoughts on judicial lawmaking. See H. BLACK, My FATHER: A REMEMBRANCE 118-19
(1975). Black's appointment recreated the earlier lost majority, and seven days after his
HeinOnline --- 62 Tul. L. Rev. 930 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
931
among its worshippers.' "149 During Holmes' tenure, the "worshippers" still controlled the Court.150 But finally they died.
The positivist analysis of the Swift-Erie problem is so wonderfully simple that it cannot be misunderstood. The critique is
as self-evidently correct to positivitists as it was obviously wrong
to those who remained faithful to Blackstone's model. Therefore, the shift from Swift to Erie cannot be understood without
examining the parallel shift from the oracular vision of the common law to legal positivism.
A.
The Oracular Model as Coherent Theory
The shift to legal positivism is akin to the rejection in the
Copernican Revolution of Ptolemaic astronomy. The Ptolemaic
system was a wonderful, complex, and practical paradigm for
studying the relationship between the earth and the heavenly
bodies. 151 Similarly, Blackstone's model was admirably fitted to
eighteenth century English law. The idea ofjudge-made law was
inconsistent with the parliamentary victories of the seventeenth
century.152 Natural law had an ancient and respected lineage
dating back to the great Roman jurist Cicero. 153 Moreover, the
notion of law as the embodiment of reason found additional support in the regnant ideas of the Enlightenment. 154 Blackstone's
inaugural First Monday in October, the Court issued its writ of certiorari in Erie. 302 U.S.
671 (Oct. 11, 1937).
During the next two months, Willing v. Binenstock, 302 U.S. 272 (1937) was argued
and decided. Although Swift was deemed inapplicable to Willing, Justice Sutherland
gratuitously (perhaps at the behest of the newly created majority) noted that Swift "has
been much criticized, and the tendency of our decisions which have followed has been to
limit it somewhat strictly." Id. at 275. The majority created by Black's appointment was
increased on January 31, 1938 (303 U.S. at iv, n.3) when Sutherland was replaced by
Justice Reed. See Erie RR v. Tompkins, 304 U.S. 64,90 (1938) (Reed, J., concurring).
The new majority created by Black's appointment and strengthened by Reed's
appointment may explain the Court's preemptory approach to the oral argument in Erie.
See supra notes 13-15 and accompanying text. The Court already had reached its decision.
149. Baltimore & O. RR. v. Baugh, 149 U.S. 368, 403 (1893) (Field, J., dissenting).
150. In 1910, Holmes wrote that detailed analysis of Swift was useless "against old
Harlan who simply rolled off the cases." Letter from Holmes to Sir Frederick Pollock,
supra note 115, at 157, 158; see also Letter from Holmes to Harold Laski, supra note 117,
("the late Harlan, Day, and a majority of others have treated the question as if they were
invited to speculate about the Common Law in abstracto"). Id. at 822, 823.
151. See generally T. KUHN, THE COPERNICAN REVOLUTION (1957).
152. See R DIAS, JURISPRUDENCE 82 (3d ed. 1970).
153. CICERO, DE LIGIBUS, Bk. I.
154. See generally E. CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT (1932);
P. GAY, THE ENLIGHTENMENT: AN INTERPRETATION (vol. 1: 1966; vol. 2: 1969). On
the enlightenment and natural law, see 2 P. GAY, supra, at 455-61; E. CASSIRER, supra, at
234-74.
HeinOnline --- 62 Tul. L. Rev. 931 (1987-1988)
932
TULANE LAW REVIEW
[Vol. 62
equation of reason with longstanding custom was especially
attractive to conservative Englishmen. ISS Eventually, however,
Blackstone's model-like the Ptolemaic system-was replaced
by a new theory.
Blackstone was a conservative man speaking to a conservative audience. When his general theory conflicted with the historical status quo, England's political history required a major
adjustment of Blackstone's basic model. Under his natural law
theory, there could be no palpably unreasonable laws. Thus, he
wrote that prior judicial decisions that are "most evidently contrary to reason" should be dismissed as evidence of human error
rather than legal principle. 156 Just as judicial decisions are subject to human error, so too are acts of Parliament. Therefore,
under a consistent theory, judges should disregard patently
unreasonable acts of Parliament. This straightforward theoretical conclusion was, however, quite incompatible with the struggles between King and Parliament in the seventeenth century.157
By dint of combat, the headsman's block, and negotiation, Parliament had established an absolute and fundamental rule of legislative supremacy. 158 Justice Jackson's aphori~m about the
Supreme Court of the United States l59 applied without limit in
Great Britain. Parliament was (and is) not final because it was
infallible; it was infallible only because it was final.
Blackstone dealt with the fait accompli of absolute Parliamentary power by simply confining his natural law theory to the
common law. The legislative branch was supreme. l60 Legislators
may be prone to human error,161 but even a clearly unreasonable
act of Parliament would be enforced by the King's judges. 162
Without this necessary limitation, the model would have been
155. See J. POCOCK, Burke and the Ancient Constitution: A Problem in the History of
Ideas, in J.G.A. POCOCK, POLITICS LANGUAGE AND TIME 202-32 (1971).
156. See supra note 47 and accompanying text.
157. R. DIAS, supra note 152, at 82-83; accord 1 TUCKER'S BLACKSTONE, supra note
51, at *91 n.20.
158. See general/y, G. AYLMER, THE STRUGGLE FOR THE CONSTITUTION (1963).
159. Brown v. Allen, 344 U.S. 443, 530 (1953).
160. 1 W. BLACKSTONE, COMMENTARIES *156-*157; accord 1 KENT'S
COMMENTARIES, supra note 51, at 447-48 (discussing English law); see a/so J. GOUGH,
FUNDAMENTAL LAW IN ENGLISH CoNSTITUTIONAL HISTORY 188-91 (1955). When
there is a conflict between a statute and common law, "the common law gives place to the
statute." 1 W. BLACKSTONE, COMMENTARIES *89. Furthermore, statutory law may
remedy defects in the common law. Id. at *86-*87.
161. Id. at *10-*11.
162. Id. at *91; see a/so id. at *49, *157.
HeinOnline --- 62 Tul. L. Rev. 932 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
933
incoherent to English lawyers. 163 The result was a blend of naturallaw and legal positivism. l64 The content of statutory law was
defined procedurally in terms of the command of the sovereign,
while common law was defined substantively in terms of divine
command and human reason.
Other deviations from Blackstone's general natural law theory were dictated by the existence of aberrant local customs
scattered about England165 and the traditional resort of some
specific courts in England to civil and canon law. 166 Although
these laws were in part quite contrary to the common law,167
Blackstone recognized the aberrant principles' validity. He
presented no theoretical justification for the simultaneous existence of conflicting laws. 168 He simply accepted the fact of their
existence.
Blackstone's theory also was well suited to some of the specific needs of the American legal profession in the nineteenth
century. The most important legal task of the century was to
develop a comprehensive body of law for ordering legal relationships.169 Blackstone's model, shorn of the conservative restraint
of custom,170 was admirably suited to this purpose. The common
law provided an answer to any issue that might come before a
court. 171 If there were no pertinent precedent-as frequently
happened in the first part of the century-judges were free to
declare a rule of decision based on reason. There could not be a
more flexible or a more instrumental model for developing a
corpus of law for a new country. By the end of the century,
163. Thefait accompli of supreme Parliamentary power did not exist for American
lawyers. This lack of de facto legislative supremacy coupled with the written Constitution
enabled Americans to frame a coherent doctrine of jUdicial review based on natural law
principles. See, e.g., 1 WILSON'S LECTURES, supra note 51, at 326-33; 1 KENT'S
COMMENTARIES, supra note 51, at 448-54.
164. For an attempted reconciliation of this inconsistency, see R. CoVER, JUSTICE
ACCUSED 25-26 (1975).
165. W. BLACKSTONE, COMMENTARIES *74-*79.
166. Id. at *79-*84.
167. See, e.g., id. at *74-*75 (discussing gavelkind in Kent).
168. For example, he did not hint that the aberrations treated topics to which natural
law was indifferent. See supra note 41.
169. R. POUND, THE FORMATIVE ERA OF AMERICAN LAW ch. 1 (1938); see also G.
GILMORE, THE AGES OF AMERICAN LAW 19-25 (1977).
170. By definition there were no ancient customs in the New World. See infra note
191 and accompanying text.
171. See, e.g., P. DUPONCEAU, A DISSERTATION ON THE NATURE AND EXTENT OF
THE JURISDICTION OF THE COURTS OF THE UNITED STATES 88 (1824) (The common law
"was a general system of jurisprudence, constantly hovering over the local legislation and
filling up its interstices. It was ready to pour in at every opening it could find.").
HeinOnline --- 62 Tul. L. Rev. 933 (1987-1988)
934
TULANE LAW REVIEW
[Vol. 62
however, there was no longer a pressing need to create a freestanding corpus of law. If anything, the profession thought
there was too much law. 172
Blackstone's model also provided the legal profession with a
partial defense against the onslaught of what might loosely be
called Jacksonian Democracy. By the 1830s critics were railing
against the legal profession and the common law as undemocratic institutions. 173 The common law, they argued, should be
codified by democratic legislatures rather than made by elitist
judges. 174 The judges should be brought under democratic control through popular elections. 175 The declaratory theory provided a convenient defense to these charges of elitism and
undemocratic lawmaking. 176 Judges do not make law; they simply apply self-evident rules of human reason. An admission that
judges actually make law would have been seen as a partial concession of the need for more popular control over the common
law.
This conceit that judges do not make law was still a powerful force in 1921 177 when Judge Cardozo delivered his Storrs
Lectures on the judicial process. 178 Although he candidly
rejected the old dogma,179 Arthur Corbin reports that Cardozo
was mildly concerned about publishing the lectures and humorously remarked, "If I were to publish them I would be
impeached."180
172. See infra note 209 and accompanying text.
173. See Note, Swift v. Tyson Exhumed, 79 YALE L.J. 284, 297-305 (1969); see also
C. COOK, THE AMERICAN CODIFICATION MOVEMENT ch. 7 (1981).
174. See, e.g., Robinson, Reform ofLaw and the Judiciary ("The jUdiciary ... is the
headquarters of the aristocracy ... and it is impossible to know, before the judge decides,
what the law is."), in READINGS IN AMERICAN LEGAL HISTORY 455-56 (M. Howe ed.
1949); accord Rantoul, Oration at Scituate in THE LEGAL MIND IN AMERICA 222-27 (p.
Miller ed. 1962); see also Walker, Codification, I W. L.J. 433 (1844).
175. See R. COVER, supra note 164, at 144-46; E. HAYNES, THE SELECTION AND
TENURE OF JUDGES 80-101 (1944); J. HURST, THE GROWTH OF AMERICAN LAW: THE
LAW MAKERS 140 (1950).
176. See, e.g., The Independence ofthe Judiciary, N. AM. REv. 403, 411, 423 (1843),
reprinted in THE GOLDEN AGE OF AMERICAN LAW 147-53 (C. Haar ed. 1965); see also L.
FRIEDMAN, A HISTORY OF AMERICAN LAW 540-41 (1973).
177. For sophisticated twentieth century justifications of the old dogma, see
Scholfield, supra note 76, at 536-37; 2 R. POUND, JURISPRUDENCE 238-39 (1959); see also
Root, The Importance of an Independent Judiciary, 72 THE INDEPENDENT 704 (1912).
178. B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
179. Id. Lecture III.
180. Corbin, Forward, in B. CARDOZO, supra note 178, at iv. Nine years later, the
"age-old controversy ... [was] still raging, as to whether judges merely find the law or
whether judges actually make the law." Dobie, Seven Implications of Swift v. Tyson, 16
HeinOnline --- 62 Tul. L. Rev. 934 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
935
Finally, the oracular model provided a basis for achieving a
uniform national law of commercial transactions. The need for
uniformity of laws governing interstate business transactions
was as obvious in the nineteenth century181 as it is in the present. 182 This national agenda made Blackstone's theory of a uniform common law governing commercial transactions appealing
to nineteenth century attorneys.183 The only problem was that
the theory did not work in practice,184 as we shall see, and by the
late nineteenth century the profession began turning to uniform
state statutes for a solution.185
B.
The Oracular Model Becomes Incoherent
Although Blackstone's model began life as a coherent theory, its later history is a story of conflict between pure theory
and professional experience. As with most fundamental theories, the class of people who used Blackstone's model to organize
and understand human experience came to note discrepancies
between the model and their own experience. Rather than
rejecting the basic theory and embracing chaos, lawyers and
other legal thinkers adjusted the pure model to bring it into harmony with their experience.
1. The Oracular Model Comes to America
The English colonization of North America can be viewed
as an unsuccessful attempt to transplant English institutions and
customs to the New World. Blackstone thought that the comVA. L. REv. 225, 231 (1930). In 1931, Albert Kocourek wrote that "it is universally
conceded that the Declaratory theory is not only a fiction but also that it is a fiction which
when taken seriously often produces bad results .... [Nevertheless,] we believe that no
court in this generation will have the hardihood to [abolish the Declaratory theory]."
Kocourek, supra note 3, at 18D-81; accord People ex rel. Rice v. Graves, 242 App. Div. 128,
130-35, 273 N.Y.S. 582, 586-91 (1928), ajf'd mem., 270 N.Y. 498 (1936), cert. denied, 298
U.S. 683 (1936).
181. See, e.g., J. WALLACE, supra note 63; Railroad Co. v. National Bank, 102 U.S.
14, 57-58 (1880) (Clifford, J., concurring), discussed in notes 64-67 supra and
accompanying text.
182. See, e.g., UNIFORM COMMERCIAL CoDE.
183. See supra note 181 and accompanying text. See generally T. FREYER, supra note
10; see also T. FREYER, FORUMS OF ORDER: THE FEDERAL COURTS AND BUSINESS IN
AMERICAN HISTORY (1979).
184. See infra notes 205-219 and accompanying text.
185. See A.B.A. REpORT OF THE COMMITTEE ON UNIFORM STATE LAWS, 14
A.B.A. PROC. 365 (1891); see also Day, The National Conference of Commissioners on
Uniform State Laws, 8 U. FLA. L. REv. 276 (1955).
HeinOnline --- 62 Tul. L. Rev. 935 (1987-1988)
936 '
TULANE LAW REVIEW
[Vol. 62
mon law did not extend to the "American plantations,"186 but
American views were exemplified by William Paterson: 187 "our
ancestors brought over the common law as their birth right. It is
ours by inheritance." ISS Ultimately, however, Blackstone's
model proved unable to survive on a vast continent divided into
numerous federated states. 189
In the beginning the vastness of North America presented
no serious problems for the model. The length of the Atlantic
seaboard virtually dictated the foundation of numerous geographically and politically separated colonies. Blackstone's
model was admirably suited to a small state with a unified judicial system like England, and these conditions were replicated
within the individual American colonies. Like England, each
colony developed a more or less internally cohesive system of
law administered by a unified judicial system. The colonial
courts, however, inevitably diverged from the common law as
administered in England. 190 This was the beginnning of a long186. 1 W. BLACKSTONE, COMMENTARIES *109. See Nolan, Sir William Blackstone
and the New American Republic: A Study ofIntellectual Impact, 51 N.Y.U. L. REv. 731,
739-40 (1976).
187. Paterson was a leading delegate to the Constitutional Convention, a codrafter of
the Judiciary Act of 1789, and finally a member of the United States Supreme Court. See
generally J. O'CONNER, WILLIAM PATERSON LAWYER AND STATESMAN 1745-1806
(1979).
188. Unpublished Opinion (1794), reprinted in Casto, The Federal Courts' Protective
Jurisdiction Over Torts Committed in Violation of the Law ofNations, 18 CONN. L. REV.
467, app. at 529 (1986); accord 1 KENT'S COMMENTARIES, supra note 51, at *472-*73; 1 J.
STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. XVI (1833);
1 TuCKER'S BLACKSTONE, supra note 51, app. Note E, at 381-84; Grand Jury Charge of
Chief Justice Ellsworth (1799), reprinted in Jay, Origins of Federal Common Law: Part
One, 133 U. PA. L. REv. 1003, app. at 1114 (1985).
189. Although legal positivism also supplanted the oracular model in Great Britian,
the similar changes in the two countries need not have stemmed from the same causes. For
example, Blackstone's theoretical emphasis upon longstanding custom and the sanctity of
precedent was appealing to a conservative eighteenth century audience but not really suited
to the radical changes of the nineteenth century. Some British thinkers have attributed the
rise of legal positivism in nineteenth century Britain to the need for a doctrine that would
accomodate change. See 13 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 128-30 (A.
Goodhart & H. Hambury ed. 1952); Dicey, Blackstone's Commentaries, 54 NAT'L REv.
653 (1909), reprinted in 4 CAMBRIDGE L.J. 286 (1932); Holdsworth, Some Aspects of
Blackstone and his Commentaries, 4 CAMBRIDGE L.J. 261, 273-85 (1932). If this analysis is
correct, it would explain the change in Britain but would be irrelevant to the American
scene. When Blackstone's model was imported to America, the rigid theoretical emphasis
upon longstanding custom was neatly excised in a manner consistent with the basic model.
See infra notes 194-97 and accompanying text. This left a doctrine based upon flexible
reason that could satisfy the needs of a new country entering a new age.
190. The colonial courts were not subject to review by the common law courts in
London. See generally, J. SMITH, ApPEALS TO THE PRIVY COUNCIL FROM THE
HeinOnline --- 62 Tul. L. Rev. 936 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
937
standing intellectual crisis that played a significant role in the
eventual rejection of Blackstone's explanation of common law.
Blackstone's theory was easily modified to account for differences between English and American common law. The
divinely reasonable principles of the common law did not change
when they were imported to the New World. The conditions
changed. In the secret Senate debates of the judiciary Act that
included the Rules of Decision Act drafted by Oliver Ellsworth,191 Ellsworth noted that "the Common Law of England in
some Instances [has been] found inapplicable to the Circumstances of some of the States. ul92 This "changed conditionsu
explanation was adopted by other influential American
lawyers. 193
Blackstone's emphasis upon custom as the basis of the common law also had to be modified in the New World. He wrote,
"in our law the goodness of a custom depends upon its having
been used time out of mind; or, in the solemnity of our legal
phrase, time whereof the memory of man runneth not to the
contrary.Ul94 But in the early American republic there were no
such customs. The country, and the colonies before it, were too
new.195 Early American writers like James Wilson and
Zephaniah Swift emphasized reason over custom in defining
law. 196 In emphasizing the primacy of reason, they expressly
recognized the immense, potential flexibility of Blackstone's system. They saw law as a dynamic, progressive concept. 197 The
AMERICAN PLANTATIONS (1950). Professor Smith concluded, however, that colonial
lawyers tended to disregard Privy Council decisions that were contrary to printed English
precedents. Id. at 464.
191. Ellsworth was a leading delegate to the Constitutional Convention, the principal
drafter of the Judicial Act of 1789, and later Chief Justice of the United States Supreme
Court. See generally W. BROWN, THE LIFE OF OLIVER ELLSWORTH (1905).
192. Manuscript notes of Senator Pierce Butler (June 23, 1789) (Ms. in Pierce Butler
Papers, Pennsylvania Historical Society); accord Adams v. Kelloggs, I Kirby 438, 442
(Conn. 1787) (separate opinion by Ellsworth, J.). Wilford v. Grant, 1 Kirby 114, 117
(Conn. 1786) (By the Whole Court).
193. See 1 KENT'S COMMENTARIES, supra note 51, at *472; 1 Z. SWIFr, supra note
51, at 42-43; WILSON'S LECTURES, supra note 51, at 360; Cranch, Pre/ace, 5 U.S. at iii
(1804); see also Root, Introduction, 1 Root at xiii-xiv (Conn. 1798). Even Blackstone
agreed that if the common law were applied overseas it would be changed to fit the
colonists' "own situation and the condition of an infant colony." W. BLACKSTONE,
SUPPLEMENT TO THE FIRST EDmON page 105, line 1.
194. 1 W. BLACKSTONE, COMMENTARIES *67; see also id. at *64, *74-*76.
195. 1 TUCKER'S BLACKSTONE supra note 51 at *76 n.7.
196. 1 WILSON'S LECTURES, supra note 51, ch. XII, at 344-68; 1 Z. SWIFr, supra
note 51, at 40-54.
197. See, e.g., 1 WILSON'S LECTURES, supra note 51, at ch. III, 126, 146-47:
HeinOnline --- 62 Tul. L. Rev. 937 (1987-1988)
938
TULANE LAW REVIEW
[Vol. 62
result was a definition of law that allowed judges to follow the
dictates of their individual consciences. 198
2.
The Rise of Inexplicable Conflict
Although conflicts between the common law as administered in England and America were easily explained, conflicts
within the American federation were, in theory, more troublesome. The seriousness of this problem initially may have been
concealed by a comparative lack of communication among the
legal communities in the various states. In colonial times, the
complete absence of published judicial reports 199 made early
American attorneys' intercolonial communications anecdotal at
best.
Even in the late eighteenth and early nineteenth centuries,
sophisticated American attorneys understood that the judicial
systems of different states were rendering conflicting decisions.
These conflicts could, however, have been explained as being
based upon conflicting statutes or isolated local custom. 2OO Justice Story knew that the various state courts were rendering conIt is the glorious destiny of man to be always progressive. Forgetting those
things that are behind, it is his duty, and it is his happiness, to press on towards
those that are before.
Our progress in virtue should certainly bear ajust proportion to our progress
in knowledge. Morals are undoubtedly capable of being carried to a much higher
degree of excellence than the sciences, excellent as they are. Hence we may infer,
that the law of nature, though immutable in its principles, will be progressive in
its operations and effects. Indeed, the same immutable principles will direct this
progression. In every period of his existence, the law, which the divine wisdom
has approved for man, will not only be fitted, to the contemporary degree, but will
be calculated to produce, in future, a still higher degree of perfection.
See also 1 WILSON'S LECTURES, supra note 51, at 353-54; Justice Wilson's Grand Jury
Charge (1793), quoted in Jay, supra note 188, at 1237; accord 1 Z. SWIFT, supra note 51, at
40-41,46 (1795); Z. SWIFT, A DIGEST OF THE LAW OF EVIDENCE v-vi (1810). Justice
Story also viewed the common law as a progressive system. See supra note 98; see also 1
KENT'S COMMENTARIES, supra note 51, at *478 (common law reflects "progress of
society").
198. Cf. Holdsworth, Case Law, 50 L.Q. REv. 180, 185 (1934) (noting the great
potential flexibility of Blackstone's definition of common law but failing to address
Blackstone's emphasis on longstanding custom).
199. The first American jUdicial reports were not pUblished until 1789. 1 Kirby
(Conn. 1789).
200. See, e.g., Statement of Peter S. Du Ponceau (1821), quoted in Fletcher, The
General Common Law and Section 34 ofthe Judiciary Act of 1789: The Example ofMarine
Insurance, 97 HARV. L. REv. 1513, 1559 n.218 (1984) [hereinafter Fletcher's General
Common Law]; 1 TuCKER'S BLACKSTONE, supra note 51, at app. 151-52, 391-93, 432;
United States v. Worrall, 28 F. Cas. 174, 779 (C.C.D. Pa. 1798) (No. 16,766) (Chase, J.).
HeinOnline --- 62 Tul. L. Rev. 938 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
939
flicting decisions,201 but this contrariety did not shake his
faith. 202 The regnant oracular model provided a general explanation of conflicting decisions. At least one of the decisions was
wrong. 203 In Swift itself Justice Story dismissed apparently conflicting New York decisions as simply erroneous and proceeded
"to express [the Court's] own opinion of the true result of the
commercial law upon the question now before us."204
During the first two decades of the nineteenth century there
already was professional concern about the disuniformity in the
common law,205 and, as the century progressed, a confluence of
factors exacerbated the problem. The number of states (and
hence independent judicial systems) increased from sixteen in
1800 to forty-five in 1900, with a consequent increase in the
potential for conflicting decisions. This serious structural problem was exacerbated by a radical expansion of the practice of
publishing judicial opinions that reached a fecund apothesis with
the advent of the West national reporter system. 206 In addition,
201. Story, The Progress ofJurisprudence. An Address Delivered before the Members
ofthe Suffolk Bar, reprinted in STORY'S MIsc. WRmNGS, supra note 35, at 198,213; Story,
A Discourse on the Past History, Present State, and Future Prospbcts of the Law (1835),
reprinted in J. MCCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTlTUTlON 325,
app. II at 334 & 340 (1971).
202. The contrariety of opinion was, however, a matter of concern to Story. In both
of the passages cited supra note 201, Story noted, "the conflict of opinion upon general
questions of law in the rival jurisdictions of the different States, will not be less distressing
to the philosophical jurist, than to the practical lawyer."
In 1823, Nathan Dane expressed a similar concern. "The evil to be feared in our
country is, that so many sovereign legislatures, and so many Supreme Courts, will produce
too much law, and in too great a variety; so much and so various, that any general revision
will become impracticable." 1 N. DANE, A GENERAL ABRIDGMENT AND DIGEST OF
AMERICAN LAW xiv (1823). For Dane, the idea of a general common law provided a
remedy for this evil. "We have in the common and federal law, the materials of national
uniformity in numerous cases. We have a national judiciary, promoting this uniformity,
and we have lawyers, learned, industrious, and able, to second this judiciary. We only want
a general efficient plan, supported with zeal, energy, and national feelings." Id. at xv;
accord J. WALLACE, WANT OF UNIFORMITY IN THE COMMERCIAL LAW BETWEEN THE
DIFFERENT STATES OF OUR UNION (1851), discussed and quoted supra note 62.
203. See, e.g., 1 H. BRACKENRIDGE, CONSIDERATIONS ON THE JURISPRUDENCE OF
THE STATE OF PENNSYLVANIA 3 (1808), quoted in Fletcher's General Common Law, supra
note 200, at 1558-59.
204. 41 U.S. at 19.
205. Fletcher's General Common Law, supra note 200, at 1558-62 provides a
sampling of early nineteenth century complaints about disuniformity; see also Cranch,
Preface,S U.S. iii-iv (1804). Nevertheless, "during the first decades of the nineteenth
century American courts - both state and federal - were able to develop and maintain a
stable and largely uniform body of rules governing [marine insurance] an important area of
commercial law." Fletcher's General Common Law, supra note 200, at 1576.
206. The first volume of American reports was published in 1789. 1 Kirby (Conn.
HeinOnline --- 62 Tul. L. Rev. 939 (1987-1988)
940
TULANE LAW REVIEW
[Vol. 62
the mere passage of time steadily increased the corpus of potentially conflicting opinions. Finally, with the flood of reported
decisions came finding aides designed to acquaint the profession
with the conflicting decisions from the various states. 207
By the end of the nineteenth century, the flood of conflicting decisional law was recognized by the legal profession as a
serious problem. 208 In 1885, a special committee of the American Bar Association reported that the profusion of precedent
had caused "the greatest uncertainty ... [and] chaos" in the
common law. 209 In 1923, a committee proposing the creation of
the American Law Institute reported that the "very number [of
reported decisions] and still more their contrariety tend to
destroy the value of [stare decisis] and to substitute uncertainty
for certainty."210 The legal profession's response to this problem
was predictably pragmatic. Codification was urged,211 the
National Conference of Commissioners on Uniform State Laws
was created,212 and the Restatements of the Law were
1789). In 1810 there were only 18 volumes; by 1910, over 8000 volumes. C. WARREN, A
HISTORY OF THE AMERICAN BAR 557 (1911).
207. Roscoe Pound praised the unifying influence of early nineteenth century
doctrinal writers. R. POUND, supra note 169, at 153-54. But by the end of the century,
most doctrinal writing had degenerated to arid collections of citations to consistent and
conflicting opinions. Id. at 157-59. The nineteenth century treatises' rote collection of
consistent and conflicting precedent paled in comparison to collections of authority in
annotated cases and digests. Publication of the first general digest of American law was not
begun until 1848. See F. HICKS, MATERIALS AND METHODS OF LEGAL REsEARCH 267-70
(3d ed. 1942) [hereinafter HICK'S MATERIALS]. The immediate ancestor of West's
American Digest was begun in 1887. Id. at 271. Lawyers Co-op began publishing
Lawyers' Reports Annotated in 1888. 1 L.R.A. (1888). Four years later Bancroft-Whitney
began publishing a digest of the American State Reports. W. MACK, A DIGEST OF THE
DECISIONS CONTAINED IN THE AMERICAN STATE REpORTS (1892). The modern concept
of a legal encyclopedia was launched during the same era, beginning with a small two
volume set in 1883 and culminating with Corpus Juris which began to appear in 1914. See
HICK'S MATERIALS, supra, at 239-44.
208. See Yntema, The American Law Institute, 12 CAN. B. REv. 319, 325-32 (1934).
209. REpORT ON UNCERTAINTY, supra note 105, at 346, 350; see also A.B.A.
REpORT OF THE COMMITTEE ON UNIFORM STATE LAWS, reprinted in 14 A.B.A. PROC.
365 (1891).
210. REpORT OF THE COMMITTEE ON THE EsTABLISHMENT OF A PERMANENT
ORGANIZATION FOR THE IMPROVEMENT OF THE LAW PROPOSING THE EsTABLISHMENT
OF AN AMERICAN LAW INSTITUTE, 1 A.L.L PROC. 1, 73 (1923) [hereinafter A.L.I.
COMMITTEE REpORT], reprinted in A.L.L, THE AMERICAN LAW INSTITUTE 50TH
ANNIVERSARY 1, 67-68 (2d ed. 1973).
211. See, e.g., A.B.A., [SECOND] REpORT OF THE SPECIAL CoMMITTEE ON DELAY
AND UNCERTAINTY IN JUDICIAL ADMINISTRATION, reprinted in 9 A.B.A. PROC. 325
(1886).
212. See Yntema, supra note 208, at 329-31; G. GILMORE, THE AGES OF AMERICAN
LAW 69-74 (1977).
HeinOnline --- 62 Tul. L. Rev. 940 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
941
launched. 213
The wealth of conflict had significant intellectual implications for American legal theory. The Blackstone model provided an adequate account of isolated instances of conflict: at
least one of the courts is wrong,214 But this facile explanation is
not as persuasive when conflicting decisions become epidemic.
To take just one example: Over the course of the nineteenth century, a conflict emerged over the common-law right of a check
holder to sue a bank for refusal to pay upon presentation of the
check,21s In 1888, one commentator noted that seven states
denied the holder a cause of action, seven others allowed the
holder to sue, and three states, the federal courts, and England
had cases going both ways.216 Following Blackstone's model, at
least seven of these states were simply wrong and were denying
litigants the benefit of the common law. The concept of changed
conditions217 could not harmonize conflicting decisions in states
like Tennessee and Kentucky or Illinois and Indiana.218 Furthermore, the conflicting precedents in the check holder cases
were based upon quite reasonable but conflicting rationales. 219
The radical inconsistency between the oracular model and
professional reality was readily apparent to attorneys in the late
nineteenth and early twentieth centuries. In 1891 the Supreme
213. See Corbin, The Restatement of the Common Law by the American Law
Institute, 15 IOWA L. REv. 19 (1929); Yntema, supra note 208; see also Goodrich, The
Story of the American Law Institute, 1951 WASH. U.L.Q. 293 (1951).
214. Cf. C. LANGDELL, A BRIEF SURVEY OF EQUITY JURISDICTION 251 (1905) (In
the case of a conflict between a court of law and a court of equity, "[e]ither court may be
wrong, and one of them must be." Id. (emphasis in original»; accord Beale, The Necessity
for a Study ofLegal System, PROC. AsS'N AM. L. SCHOOLS 31, 38 (1914) (discussing the
common law rather than equity); see also G. GILMORE, supra note 169, at 70. For an
absurd restatement of this analysis, see Slaton v. Hall, 148 S.E. 741, 743 (Ga. 1929) ("!fall
the American states were to construe the same principle of common law incorrectly, the
common law would be unchanged.").
215. See generally 2 J. MORSE, A TREATISE ON THE LAW OF BANKS AND BANKING
§§ 490-541 (p. Parsons 3d rev. ed. 1888) [hereinafter MORSE ON BANKING]; J. ZANE, THE
LAW OF BANKS AND BANKING §§ 146-47 (1900) [hereinafter ZANE ON BANKING]. For
another example, see the conflict regarding the tort of wrongful civil action that is ably
discussed in Lawson, The Action for the Malicious Prosecution of a Civil Suit, 21 AM. L.
REG. 281, 369 (1882) ("But while the weight of authority denies the action, the weight of
reason allows it."); see also 18 RULING CASE LAW, Malicious Prosecution § 3, at 13 (1917)
("the authorities are in hopeless conflict").
216. MORSE ON BANKING, supra note 215, at §§ 493-94. The case "authority [was]
as divergent as the rays of the sun." Id. § 493, at 829.
217. See supra notes 187-89 and accompanying text.
218. See MORSE ON BANKING, supra note 215, at §§ 493-94.
219. Compare id. at § 496 (arguing for holder's right to sue) with ZANE ON
BANKING, supra note 215, at § 147 (against holder).
HeinOnline --- 62 Tul. L. Rev. 941 (1987-1988)
942
TULANE LAW REVIEW
[Vol. 62
Court of Ohio abandoned the oracular model because the theory
was incoherent with professional reality:
In theory it may be true that there is no common law of Ohio
or of Pennsylvania; that the common law is one and the same
in every state acknowledging its obligations; and that the decisions of one state are but evidence of it, not binding upon the
courts of any other state; but, as matter offact, we know that, in
the application of the rules of the common law to the affairs of
men, there is, unfortunately, in the several states, a wide divergence; ... and in the administration ofjustice mere theory must
be made to yield to the truth as established by facts and
experience. 22o
Accordingly, the Ohio court felt bound in a case governed by
Pennsylvania common law to follow Pennsylvania precedent
that the Ohio court expressly disapproved. 221
Nevertheless, Swift's reign continued. In 1892, law students
were told that the "vast majority" of lawyers still followed
Blackstone's declaratory theory of the common law. 222 Most of
the profession may have given lip service to the oracular model,
but they probably had little or no interest in general theories
about the nature of the law. 223 For these attorneys, Swift was a
judicial precedent that was to be followed blindly. Furthermore,
attorneys who had been educated in the oracular tradition
cleaved to the theory of their youth. As Holmes complained in
220. Alexander v. Pennsylvania Co., 30 N.E. 69, 71 (Ohio 1891) (emphasis added).
Able commentators similarly used the problem of conflicting jurisdictions to impeach the
oracular vision of adjudication. See, e.g., Carpenter, Court Decisions and the Common
Law, 17 COLUM. L. REv. 593, 601-02 n.27 (1917); see also J. MOORE, INTERNATIONAL
LAW AND SOME CURRENT ILLUSIONS 331-32 (1924) ("The very multiplicity of cases, and
the consequent impossibility of dealing with them scientifically, reduces practitioners to a
reliance upon particular decisions rather than upon general principles.").
221. Alexander, 30 N.E. at 71.
222. E. WAMBAUGH, THE STUDY OF CASES § 77 (1892); see also J. TOWNES,
STUDIES IN AMERICAN ELEMENTARY LAW 103 (1903); 2 R. POUND, supra note 177, at
90-93 (1959); Rand, Swift v. Tyson versus Gelpcke v. Dubuque, 8 HARV. L. REv. 328, 329
(1894); Thayer, Judicial Legislation: Its Legitimate Function in the Development of the
Common Law, 5 HARV. L. REV. 172, 179-80 (1891). The situation had not changed much
by 1910 when Herbert Pope wrote, "For some reason the writings of Bentham and Austin
upon the nature of the common law have never had any great influence in this country,
certainly not with the courts." Pope, The English Common Law in the United States, 24
HARV. L. REv. 6, 6-7 (1910).
.
223. See, e.g., E. WAMBAUGH, supra note 222, at §§ 76-79, in which the author
explains the conflict between the oracular model and legal positivism. Wambaugh
concluded, however, that for students and presumably practitioners the dispute was over
semantics and "neither view [is] essential." Id. § 79, at 80; see also J. DILLON, THE LAW
AND JURISPRUDENCE IN ENGLAND AND AMERICA 232 (1895).
HeinOnline --- 62 Tul. L. Rev. 942 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
943
1910, the older members of the Supreme Court "simply rolled
off the cases."224 In addition, attorneys of the time were deeply
concerned with the uncertainty of the law. The hopelessly conflicting decisions of various state courts made a mockery of
Swift's theoretical underpinnings but ironically provided support
for continuing and even extending the doctrine. Under Swift, the
ideal of a unified national common law was at least partially
attainable in federal COurt. 225 Therefore, a little cognitive dissonance advanced the quest for certainty in the law.
3.
The Rise of the Case Method
A second major source of incoherence between professional
experience and Blackstone's model was introduced in 1870 when
Langdell began using the case method at Harvard. 226 For most
of the nineteenth century, formal legal education was based
upon lectures and treatises that emphasized the general principles of the common law. 227 This emphasis dovetailed neatly
with the regnant oracular theory, but Langdell's new case
method amounted to a relentless, heuristic assault upon Blackstone's mode1,228 Blackstone viewed judicial opinions as important secondary sources deduced from primary general principles,
but Langdell's teaching method turned judicial decisions into
primary sources that were used to induce general principles. 229
When students are told that they can learn the law only through
224. See supra note 150.
225. The committee recommending the establishment of the ALI listed the Swift
doctrine as a significant factor tending to unify the law. A.L.I. COMMrrrEE REpORT,
supra note 210, at 92-93. Other commentators in the 1920s and 19308 agreed. Brown, The
Jurisdiction ofthe Federal Courts Based on Diversity ofCitizenship, 78 U. PA. L. REv. 179,
191 (1929); Parker, supra note 56, at 438; Yntema, The Jurisdiction ofthe Federal Courts in
Controversies Between Citizens of Different States, 19 A.B.A. J. 71, 74-75 (1933).
226. See generally R. STEVENS, LAW SCHOOL LEGAL EDUCATION IN AMERICA
FROM THE 1850's TO THE 1980's ch. 3 & 4 (1983).
227. See J. REDLICH, THE COMMON LAW AND THE CASE METHOD IN AMERICAN
UNIVERSITY LAW SCHOOLS 7-8 (1914); see also Speziale, Langdell's Concept of Law as
Science: The Beginning ofAnti-Formalism in American Legal Theory, 5 VT. L. REv. 1, 4-7
(1980). During this period, Blackstone's Commentaries were the dominant text in both
fonnal and infonnallegal education. See Nolan, supra note 186, at 759-67.
228. Christopher Columbus Langdell almost certainly did not view his techniques in
this light. From what little we know of his philosophy, he viewed common law
adjudication as the application of pre-existing law to facts. See generally Grey, Langdell's
Orthodoxy, 45 U. Prrr. L. REv. 1 (1983). But see Speziale, supra note 227.
229. See C. LANDGELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS vii-ix
(2d ed. 1879); Langdell, Speech, 3 L.Q. REv. 123, 124 (1887) ("Law is a science, and ... all
the available materials of that science are contained in printed books.").
HeinOnline --- 62 Tul. L. Rev. 943 (1987-1988)
944
TULANE LAW REVIEW
[Vol. 62
the careful study of judicial opinions, the subliminal message is
that the opinions are the law.
The impact of the case method, however, could not have
been felt in the Supreme Court until well into the twentieth century. Langdell's innovation did not become the preferred
approach to formal legal education until the tum of the century.230 Furthermore, formal training in law school did not
become the predominate educational pattern for attorneys until
the later part of the nineteenth century?31 When the Court reaffirmed Swift in 1910,232 two of the Justices had not attended law
school,233 and a third had quit school after only six months. 234
none of the Justices had been educated under the case method. 235
Even after Langdell's approach achieved preeminence, a
further lapse of time naturally followed while former students
matured into leaders of the bar. When Black & White Taxicab
was decided in 1928, the three members of the Court who had
been educated under the case method voted 2-1 to overrule
Swift.236 The six justices who had not been educated under the
case method voted 5-1 to reaffirm Swift.237 Just ten years later,
230. R. STEVENS, supra note 226, at ch. 4.
231. See L. FRIEDMAN, A HISTORY OF AMERICAN LAW 525-58 (1973); J. REDLICH,
supra note 227, at 7; see also A. BLAUSTEIN & R. MERSKY, THE FIRST ONE HUNDRED
JUSTICES 21 (1978) ("Holmes was the first Supreme Court appointee ... with a 'modem'
law degree.").
232. Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910).
233. Joseph McKenna was self-educated beginning in the early 18605. 3 THE
JUSTICES OF THE UNITED STATES SUPREME CoURT 1789-1969, at 1721 (L. Friedman &
F. Israel ed. 1969) [hereinafter JuSTICES]. John Harlan read law in the mid-1850s. 2
JUSTICES, supra, at 1281-82.
234. Melville Fuller attended Harvard Law School for six months in the mid-1850s
and then read law. 2 JUSTICES, supra note 233, at 1472.
235. For McKenna, Harlan, and Fuller, see supra note 233-34. David Brewer read
law and attended Albany Law School in the mid-1850s. 2 JuSTICES, supra note 226, at
1516. Edward White attended the School of Law of the University of Louisiana (now
Tulane University) in the mid-1860s. 3 JUSTICES, supra note 233, at 1636. Oliver Wendell
Holmes attended Harvard Law School in the mid·1860s. 3 JUSTICES, supra note 233, at
1756. William Day attended the Michigan Law School in the early 18705. 3 JUSTICES,
supra note 233, at 1774. Of course, the case method was not introduced until 1870 at
Harvard. See R. STEVENS, supra note 226, at ch. 3. Michigan did not adopt the case
method until the turn of the century. See E. BROWN, LEGAL EDUCATION AT MICHIGAN
202-12 (1959).
236. Harlan Stone and Louis Brandeis concurred in Holmes's dissent. Stone
attended Columbia Law School in the late-1890s. See 3 JUSTICES, supra note 233, at 222122. Columbia adopted the case method in 1891. A HISTORY OF THE SCHOOL OF LAW
CoLUMBIA UNIVERSITY ch. VI (J. Goebel ed. 1955). Brandeis attended Harvard in the
mid-1870s. 3 JUSTICES, supra note 233, at 2044. Edward Sanford, who voted to reaffirm
Swift, attended Harvard in the late 1880s. Id. at 2203.
237. Holmes was the minority of one. William Taft attended Cincinnati Law School
HeinOnline --- 62 Tul. L. Rev. 944 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
945
the Erie Court had four casemen who voted unanimously to
overrule Swift.238 The four members of the Court who had not
been educated under the case method split their votes evenly.239
The biographies of the Justices who decided Black & White
Taxicab and Erie suggest only an indirect relationship between
the case method and Swift's demise. Three noncasemen (Black,
Holmes, and Hughes) voted to overrule Swift, and one caseman
(Sanford) voted to reaffirm. The Erie litmus test was legal positivism, not the case method. Jeremy Bentham and John Austin
establish that Langdell's system is not a sine qua non to becoming a legal positivist. Justices Black, Holmes, and Hughes were
not casemen, but they certainly were positivists in the sense that
they firmly believed that judges made rather than discovered
law. 240 Similarly, a person educated under the case method need
in the late 18705. fd. at 2105. Willis Van Devanter studied at Cincinnati in 1879-81. fd. at
1945. Cincinnati adopted the case method in 1895. R. STEVENS, supra note 226, at 61.
James McReynolds attended the University of Virginia Law School in the early-1880s.
3 JUSTICES, supra note 233, at 2025. Virginia did not adopt the case method till well into
the twentieth century. J. RITCHIE, THE FIRST HUNDRED YEARS 54-58 (1978).
Pierce Butler read law in the late 1880s. 3 JUSTICES, supra note 233, at 2183. George
Sutherland attended Michigan Law School in the early 18805. 3 JUSTICES, supra note 233,
at 2134. For Michigan, see supra note 235.
238. For Brandeis and Stone, see supra note 229. Stanley Reed attended the
University of Virginia Law School and them Columbia during the first decade of this
century. 3 JuSTICES, supra note 233, at 2374. For Columbia and Virginia, see supra notes
236-37.
Owen Roberts attended the University of Pennsylvania Law School from 1896
through 1898. 3 JUSTICES, supra note 233, at 2254. Pennsylvania already had adopted the
case method in 1895. Pepper, Legal Education and Admission to the Bar, in 1 PA. B. Ass'N
REp. 105, 114-19 (1895).
Benjamin Cardozo left Columbia in 1891. B. LEVY, CARDOZO AND TIlE FRONTIERS
OF LEGAL THINKING 4 (rev. ed. 1969). Columbia adopted the case method that same year.
See supra note 236. He did not participate in the Erie decision due to illness. See 304 U.S.
iii n.2.
239. For Butler and McReynolds, who voted to reaffirm Swift, see supra note 237.
Charles Hughes attended Columbia Law School in the early 18808. 3 JUSTICES, supra note
233, at 1894. For Columbia, see supra note 236.
Hugo Black attended the University of Alabama Law School in the first decade of this
century. 3 JUSTICES, supra note 233, at 2323. Alabama adopted the case method after
1913. Holt, A Short History of Our Deanship, 25 ALA. L. REv. 165, 168 (1972).
240. For Holmes, see supra notes 114-29 and accompanying text. For Black, see
supra note 148. For Hughes, see C. HUGHES, Address at Elmira ("We are under a
Constitution, but the Constitution is what the judges say it is."), in ADDRESSES AND
PAPERS OF CHARLES EVANS HUGHES, 1906-1916, at 179-92 (rev. ed. 1916); C. HUGHES,
Address of Sept. 5,1908, in id. at 307-08, quoted in S. HENDEL, CHARLES EVANS HUGHES
AND TIlE SUPREME COURT 12 (1951). Although Columbia did not use the case method
while Hughes was a student (see supra note 239), Professor Dwight emphasized and "cited
cases constantly." Taylor, The DWight Method, 7 HARV. L. REv. 203, 206 (1894). Hughes
HeinOnline --- 62 Tul. L. Rev. 945 (1987-1988)
946
TULANE LAW REVIEW
[Vol. 62
not become a legal positivist. 241 Because so little is known about
Justice Sanford,242 his vote in Black & White Taxicab to reaffirm
Swift is difficult to assess. Just five years earlier he emphatically
endorsed the result that eventually was obtained in Erie. 243 And
yet he cleaved to Swift. Perhaps he simply was a pragmatic lawyer who had no thoughts at all about legal theory. If this is so,
his reaffirmation of Swift could be explained as a case of blindly
following the lead of his mentor, Chief Justice Taft. 244
C.
The Supreme Court Renounces the Quest for Uniformity
Because Swift's original rationale had become incoherent to
a clear majority of the Erie Court, the only bases for continuing
the doctrine were adherence to precedent and the lingering ideal
of a uniform national common law administered by the federal
courts. Even a positivist might have ignored the constitutional
'problem and given lip service to Swift in order to obtain national
uniformity. Members of the Erie Court knew, however, that
uniformity was a mirage. In 1891, the Evarts Act245 created the
circuit courts of appeals and made their appellate review of
diversity litigation final, subject to discretionary Supreme Court
review by writ of certiorari. 246 The practical effect of this conread and verified every cited case and others that he discovered during the process. C.
HUGHES, supra note 148, at 56.
241. See, e.g., R. DWORKIN, LAW'S EMPIRE (1986). Professor Dworkin was
graduated from the Harvard Law School in 1957.
242. "Almost nothing has been published on Justice Sanford." Burner, Edward Terry
Sandford, in, 3 JUSTICES, supra note 233, at 2203, 2209.
243. In 1923, Sanford told the Tennessee Bar Association, "I can think back over the
fifteen years when I was here administering the Federal [District] Court [in Tennessee], and
not one clash, not one question ever arose between the Federal and the State Courts. The
thing that they did for me was to decide all the questions of State law, so that vastly
relieved me in my labors, and I could say that the State Courts have decided, and it is my
duty, as well as my pleasure, to follow them without further investigation." Sanford,
Address to the Tennessee Bar Association at A-8 (1923) (Ms. in Edward Terry Sanford
Papers, Univ. of Tenn., Knoxville); see also Sanford, Address on the Establishment of
Federal Judiciary 27 (1923) (state and federal courts sit "side by side ... without conflict,
and in comity and courtesy") (Ms. in Edward Terry Sanford Papers, Univ. of Tenn.,
Knoxville).
244. "Mr. Justice Sanford had both a deference toward government and a deference
toward Mr. Chief Justice Taft, and these two inclinations were not always harmonious."
A. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS 246 (1957) (quoting
Thomas Reed Powell). The Chief Justice had been instrumental in obtaining Sanford's
appointment to the Court, and Sanford usually voted with Taft. Burner, Edward Terry
Sanford, in 3 JuSTICES, supra note 233, at 2204, 2209; see also Ragan, Mr. Justice Sanford,
15 E. TENN. HIST. SOC. PUB. 74 (1943).
245. The Circuit Court of Appeals Act of 1891, ch. 517, 26 Stat. 826 (1891).
246. Id. § 6.
HeinOnline --- 62 Tul. L. Rev. 946 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
947
gressional decision was a substantial reduction of Supreme
Court review of private litigation. 247 Between 1875 and 1925, the
portion of the Court's docket that was devoted to private controversies shrunk from forty-three percent to five percent.248 In
1928, Frankfurter and Landis reported that "Common law controversies [before the Court] are in process of atrophy ... [and
the] Court has ceased to be a common law COurt."249
This development further prepared the way for a dramatic
reversal of Swift. As we have seen, Blackstone's oracular model
gradually became more and more incoherent once confronted
with the challenges and developments of American common
law. Once uniformity was recognized as unattainable, the last
obstacle to overturning Swift was removed.
D.
Extra-professional Sources ofIncoherence
Although a combination of technical legal considerations
had placed a great strain upon Blackstone's oracular theory by
the end of the nineteenth century, the shift to legal positivism
need not be explained exclusively in terms of professional experience. A series of extra-professional or nonlegal developments
should also be mentioned as significant in preparing the way for
a shift to positivism. For example, the experience of the American Civil War was more congenial to a definition of law based
upon raw sovereign power than to a definition based upon
benign human reason. 250 The same point can be made about the
pervasive influence of Charles Darwin's theory of biological
247. Cole v. Pennsylvania R.R., 43 F.2d 953, 956-57 (2d Cir. 1930) (mentioned in
Erie R.R. v. Tompkins, 304 U.S. 64, 74 n.7 (1938)). This left primary supervision of
diversity cases to the nine circuit courts of appeal created by the Evarts Act. "Thus we
may have nine different ideas of general law of commercial jurisprudence." Mills, Should
Federal Courts Ignore State Laws?, 34 AM. L. REv. 51, 67 (1900). In 1919, a commentator
urged the creation of a national court of appeals to solve the problem of conflicts among the
circuits. Pope, The Federal Courts and a Uniform Law, 28 YALE L.J. 647, 651 (1919).
248. F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT 303
(1928). This trend continued after Frankfurter and Landis had completed their study.
Hart, The Business o/the Supreme Court at the October Terms, 1931 and 1938,53 HARV.
L. REv. 579, 608-09 n.59 (1940).
249. F. FRANKFURTER & J. LANDIS, supra note 248, at 303, 307.
250. On the general impact of the Civil War upon American inteIlectual life, see
generally G. FREDRICKSON, THE INNER CIVIL WAR (1968). We know that Justice
Holmes' combat experience had an abiding effect upon him. See, e.g.• O. HOLMES, Natural
Law, in COLLEcrED LEGAL PAPERS, supra note 114, at 310 ("I used to say, when I was
young, that truth was the majority vote of that nation that can lick all others."). See
generally M. HOWE, THE PROVING YEARS (1963); see also G. LINDERMAN, EMBATTLED
COURAGE: THE EXPERIENCE OF COMBAT IN THE AMERICAN CIVIL WAR (1987).
HeinOnline --- 62 Tul. L. Rev. 947 (1987-1988)
948
TULANE LAW REVIEW
[Vol. 62
evolution251 based on an amoral nonrational struggle for survival.252 When viewed from an extra-professional perspective,
the radical changes in legal theory in the late nineteenth and
early twentieth centuries fit into a more general acceptance of
pragmatism and a revolt against formalism. 253
v.
CONCLUDING THOUGHTS ON THE DYNAMICS OF
SUPREME COURT DECISION MAKING
The history of the Erie revolution provides a number of
insights into the dynamics of decision making within the
Supreme Court. The most interesting lesson concerns the
predominantly dogmatic attitudes of the key Justices. There is
no clear evidence that any Justice ever abandoned a prexisting
faith in either the oracular model or legal positivism. 254 Field
used religious imagery to describe the difference of opinion on
the Court. He had an "abiding faith," and Swift's defenders
were "worshippers."255 Holmes accused the Swift faction of
dogmatism when he complained that they simply "rolled off the
cases."256 His striking aphorism rejecting the "brooding omnipresence in the sky"257 is redolent of religious connnotation.
Erie's procedural history is especially suggestive of the Jus251. c. DARWIN, THE ORIGIN OF SPECIES (1859).
252. See Miller, Introduction, in AMERICAN THOUGHT: CIVIL WAR TO WORLD
WAR I, at ix-Iii (p. Miller ed. 1954); see also R HOFSTADTER, SOCIAL DARWINISM IN
AMERICAN THOUGHT (rev. ed. 1955) (noting the strength of Social Darwinism in the later
nineteenth century and the doctrine's decline in the twentieth century); P. WIENER,
EVOLUTION AND THE FOUNDERS OF PRAGMATISM (1949). Holmes thought that Charles
Darwin and Hebert Spencer (the founder of Social Darwinism) had done more "to affect
our whole way of thinking about the universe" than any other Englishmen. Letter from
Holmes to Lady Pollock (July 2, 1895), reprinted in 1 HOLMES-POLLOCK LETTERS, supra
note 115, at 57, 58.
253. See M. WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST
FORMALISM (1949).
254. Justice Field's dissent in the Baugh case suggests that he may have been an
agnostic before Baugh. See Baltimore & O. RR v. Baugh, 149 U.S. 368, 401 (1893) ("I
confess that ... 1 have, myself, in many instances, unhesitatingly and confidently, but 1
think now erroneously, repeated the [Swffi] doctrine.").
255. See supra note 149 and accompanying text.
256. See supra note'150. Justice Brandeis specifically noted that Holmes delivered
the Black & White Taxicab dissent (See supra notes 122-29 and accompanying text) "with
fervor." Letter from Louis Brandeis to Felix Frankfurter (April 10, 1928), reprinted in 5
LETTERS OF LOUIS D. BRANDEIS 335 (M. Urofsky & D. Levy eds. 1978).
257. See supra note 121; see also David Field's image, "mythical phantasms" in text
accompanying note 106 supra. Cf. 2 J. AUSTIN, LECTURES ON JURISPRUDENCE 634 (R.
Campbell 5th ed. 1885) ("common law is not ... a miraculous something made by nobody,
existing, and supposed, from eternity").
HeinOnline --- 62 Tul. L. Rev. 948 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
949
tices' dogmatic attitudes. The writ of certiorari was issued seven
days after a positivist majority was attained. 258 When neither
party addressed Swift's validity, Justice Brandeis literally forced
the issue upon counsel during oral argument. 259 The meager evidence we have of the Justices' subsequent private conference
suggests that the Court may have disposed of the case by a perfunctory vote with little discussion. 260 The respondent's attorneys and the dissenting Justices were bitter about the roughshod
overruling of Swift without the benefit ofbriefs,261 but their complaints were ignored. This highhanded approach is quite sensible if the majority opinion was indeed a matter of dogma. No
conceivable argument could have convinced the majority to
abandon a truly fundamental precept like legal positivism.
To say that Erie was a direct consequence of dogma is not
to say that all the Justices were dogmatic. Supreme Court justices being what they are, some of the Justices who considered
Swift probably had no general philosophy of law at all. These
agnostic Justices would have been open to persuasive argument,
but they would not necessarily have been neutral. Unless they
became late converts to positivism,262 they would have been
somewhat inclined to reaffirm Swift out of a conservative belief
in stare decisis. 263 All the opinions defending Swift predictably
emphasized stare decisis. In contrast, Swift's opponents emphasized philosophy-legal positivism.
A.
THE STRUCTURE OF THE ERIE REVOLUTION
When the change from Swift to Erie is analyzed in terms of
the individual Justices' personal beliefs, a structure of revolu258. See supra note 148.
259. See supra notes 13-15 and accompanying text; see also Jackson, The Rise and
Fall of Swift v. Tyson, 24 A.B.A. J. 609, 609 (1938) (describing the Erie Court's unusual
determination to reconsider Swift).
260. See supra note 16 and accompanying text.
261. See, Erie R.R. v. Tompkins, 304 U.S. 64, 88 (1938) (Butler, J., dissenting);
Letter from Elliott Cheatham to Arthur John Keeffe (Jan. 21, 1961) (discussing
recollection of Mr. Tompkin's Counsel), reprinted in Comments by Elliott Cheatham on the
True National Common Law, 18 AM. U.L. REv. 374-75 (1969).
262. See, e.g., supra note 254.
263. See Greenawalt, The Rule of Recognition and the Constitution, 85 MICH. L.
REv. 621, 652-54 (1987). To be sure stare decisis has less significance when the
constitution is involved. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-11
(1932) (Brandeis, J., dissenting); see also Maltz, Some Thoughts on the Death of Stare
Decisis in Constitutional Law, 1980 WIS. L. REv. 467. But there was no constitutional
problem absent a belief in positivism. See supra notes 126-29 and accompanying text.
HeinOnline --- 62 Tul. L. Rev. 949 (1987-1988)
950
TULANE LAW REVIEW
[Vol. 62
tionary change emerges. The oracular model and legal positivism are incommensurable and in direct conflict. A change from
one to the other cannot be viewed as a rational progression.
There is no evidence that the Erie revolution was the result of
well-written briefs or even private discussions among the Justices. When the Court's positivist count reached five, Swift was
overruled and a watershed was created.
If, as seems likely, Erie was predominantly a function of
dogma, the locus of doctrinal change was not within the Court.
This off-Court locus turns Erie into an anticlimactic consequence of an ideological revolution that already had taken place
within the legal elite. Laypersons certainly have neither interest
in nor knowledge of the rise of legal positivism. 264 The topic is
arcane and exclusively in the domain of lawyers and legal thinkers. Even within this comparatively small class, the revolution
was elitist. If Erie was dictated by the personal ideologies of
individual Justices, then the off-Court ideological revolution was
pertinent only insofar as it affected the Justices Class, the subset
of lawyers from which virtually all Supreme Court Justices are
drawn. 265
There is a good deal of slippage in the model of revolution
suggested by the overthrow of the Swift doctrine. The most visible actors in the process certainly are on the Supreme Court, but
264. Similarly, the lay public was singularly uninterested in the Erie decision.
Shortly after Erie, Felix Frankfurter wrote President Roosevelt, "I certainly didn't expect
to live to see the day when the Court would announce, as they did on Monday, that it itself
has usurped power for nearly a hundred years. And think of not a single New York paper
- at least none that I saw-having a nose for the significance of such a decision." Letter
from Felix Frankfurter to Franklin D. Roosevelt (April 27, 1938), reprinted in ROOSEVELT
AND FRANKFURTER 456 (M. Freedman ed. 1967). The New York Times eventually
published two columns on the decision only after the matter was privately brought to the
attention of the paper by Justice Stone. See Younger, supra note 13, at 1029.
265. See J. SCHMIDHAUSER, JUDGES AND JUSTICES ch. 3 (1979); see also R. CARP &
R. STIDHAM, THE FEDERAL COURTS 96-98 (1985); A. BLAUSTEIN & R. MERSKY, supra
note 231. Schmidhauser's study of the first one hundred Justices suggests a loosely defined
Justices Class with identifying family resemblances but no essential features common to all;
cf. L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS §§ 67-69 (1963). Nevertheless,
these first hundred Justices were predominantly white, male, affiuent, and protestant. If
only more recent appointments are considered, a more homogenous class is suggested.
From 1960 through 1971, eight justices were appointed, six of whom graduated from elite
and expensive private law schools. See L. BERKSON, THE SUPREME COURT AND ITS
PUBLICS 31 (1978) (Harvard (2), Howard (1), Northwestern (1), St. Paul College of Law
(1), Stanford (1), and Yale (2)). This trend has continued since that time: Justice Stevens
(Northwestern), Justice O'Connor (Stanford), Justice Scalia (Harvard) and Justice
Kennedy (Harvard); see also Might-Have-Been-Justices Bork (Chicago) and Ginsburg
(Chicago).
HeinOnline --- 62 Tul. L. Rev. 950 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
951
ideological voting patterns vary as Justices come and go. The
engine of the revolutionary model lies in the Justices Class that
provides Supreme Court Justices. 266 Even within the Justices
Class, the revolutionary model lacks precision because there
almost always is a diversity of faiths. During the heydays of
Blackstone's theory, Jeremy Bentham was ruthlessly criticaJ.267
Similarly, while positivism was achieving dominance during the
first part of the present century, men like Joseph Beale268 and
James Carter269 adamantly rejected the new faith. As late as
1923, the founders of the American Law Institute gave at least
lip service to Blackstone's original concept. 270 The inevitability
of dissention within the Justices Class makes dissention on the
Court itself inevitable.
Notwithstanding a diversity of faiths within the Justices
266. The Court's final appellate authority over all other courts justifies concentrating
upon the Justices Class to the exclusion of the broader and more indefinable class from
whence all judges, including Supreme Court Justices, are drawn. The judges in the lower
courts consider themselves to be bound by precedent. See J. HOWARD, COURTS OF
ApPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND
DISTRIcr OF COLUMBIA CIRCUITS 187 (1981); W. KITCHIN, FEDERAL DISTRIcr JUDGES
71 (1978).
267. J. BENTHAM, A COMMENT ON THE CoMMENTARIES (C. Everett edt 1928); J.
BENTHAM, supra note 99, at 233, 235; see also Hart, supra note 40; 12 W. HOLDSWORTH,
supra note 189, at 727-37.
268. Beale, supra note 214, at 38 ("Courts of each jurisdiction ... have sometimes
misconceived [the common law] and mistated it .... But the general scientific law remains
unchanged in spite of these errors; the same throughout all common law jurisdictions.");
see also 1 J. BEALE, THE CONFLIcr OF LAWS § 3.4 (1935); Samuels, Joseph Henry Beale's
Lectures on Jurisprudence, 1909, 29 U. MIAMI L. REv. 260, 283-88 (1975) (student notes of
Beale's lectures). Beale accepted the Swift doctrine as "quite within the right of the
[Supreme C]ourt." J. BEALE, supra § 3.5, at 26; see also id. at 22; 8 A.L.I. PROC. 166-67
(1930) (Beale's comments on Swift). He qualified his endorsement, however, because Swift
had the "unfortunate [effect of] unsettl[ing] the minds of lawyers as to the law ... thus
mak[ing] it difficult to advise clients." J. BEALE, supra, § 3.5, at 26; see also T. FREYER,
supra note 10, at 113-16. For a positivist counterattack against Beale, see Carpenter, supra
note 220.
269. Carter was a leader of the New York City Bar who was instrumental in
defeating David Dudley Field's campaign to accomplish the codification of New York civil
law. See Miller, James Coolidge Carter, in 8 GREAT AMERICAN LAWYERS 1-41 (W. Lewis
edt 1909). In LAW: ITS ORIGIN GROWTH AND FUNCTION (1907), Carter wrote that law is
but the reflection of community custom. See E. LEWIS, A HISTORY OF AMERICAN
POLITICAL THOUGHT FROM THE CIVIL WAR TO THE WORLD WAR 213-16 (1937); see also
J. GRAY, supra note 113, at 233-40 (positivist rejoinder to Carter).
270. A.L.I. COMMITTEE REpORT, supra note 210, at 100-101. Rather than embark
upon a detailed explication of the Swift doctrine, the drafters of the Restatement of
Conflicts briefly noted that, "The two systems of [federal and state] courts are adminstering
the same law although holding different ideas of it, as two coordinate courts frequently do;
as for instance the Circuit Courts of Appeals in different circuits." RESTATEMENT OF
CONFLICTS § 2, comment d (1934); see also 8 A.L.I. PROC. 165-67 (1930).
HeinOnline --- 62 Tul. L. Rev. 951 (1987-1988)
952
TULANE LAW REVIEW
[Vol. 62
Class, a particular viewpoint, like legal positivism, may obtain
predominance. As the degree of predominance increases, the
probability of positivist appointments to the Court also
increases. This relationship suggests that the actual transfer of
the ideological revolution from the Justices Class to the Supreme
Court is by no means direct and orderly. In the first place, the
dice are loaded against revolution. Individual lawyers who are
selected for appointment to the Court fall into one of at least
three categories. Those who continue to maintain the old faith
will reaffirm their faith after they are appointed to the Court.
Similarly, the votes of those who believe in the new faith will
reflect their different faith. The third category consists of agnostic appointees who have no firm commitment to either the new
or the old faith.271 This third group may be inclined to vote on
the basis of stare decisis to reaffirm existing principles whatever
they may be. But since stare decisis is a flexible doctrine, the
agnostic Justices will be comparatively open to persuasion.
Even after a new faith gains predominance and the old worshippers and the agnostics become a small minority within the
Justices Class, the revolution will not immediately be transferred
to the Supreme Court. This clearly was the case in respect to the
Swift/Erie problem. The ideological votes on the Court were in
equilibrium for over five years before Erie and could not be
changed until there was a change in the Court's composition. 272
Even then the Court's formal recognition of the revolution
might have been delayed if a believer in the old faith or an
agnostic had been appointed. 273
B.
Restraints Upon Supreme Court Decision Making
In addition to toppling Swift, the idea of legal positivism is a
significant element in current debate among interpretivists and
271. A particular Justice's status as an agnostic will vary from issue to issue. Justice
Holmes has been severely criticized for his agnostic approach to law. See, e.g., Rogat, The
Judge as Spectator, 31 U. CHI. L. REv. 213 (1964); G. GILMORE, supra note 169, at 48-50.
Nevertheless, he was a true believer when it came to rejecting the oracular model.
272. See supra note 148.
273. For example, Judge John Parker was a forceful advocate of the Swift doctrine.
See Parker, supra note 55, at 438; Hewlett v. Schadel, 68 F.2d 502, 504-05 (4th Cir. 1934).
The Senate, however, rejected his nomination to the Supreme Court in 1930. See 9 THE
SUPREME CoURT OF THE UNITED STATES: HEARINGS AND REpORTS ON SUCCESSFUL
AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT JUSTICES BY THE SENATE
JUDICIARY COMMITTEE, 1916-1972, at 1-83 (R. Mersky & J. Jacobstein ed. 1975); 72
CONGo REc. 8487 (1930) (Senate roll call vote). This led to the appointment of Owen
Roberts, a positivist.
HeinOnline --- 62 Tul. L. Rev. 952 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
953
noninterpretivists about the Supreme Court's role as a maker of
constitutionallaw. 274 John Austin taught us that judges also are
legislators, and this insight moved a significant portion of the
judicial process into the political arena. When the Supreme
Court fashions rules of constitutional law, the Justices exercise
political power. But what are the restraints upon the Justices'
discretion? The indeterminancy of phrases like "due process"
and "equal protection" prevents the text of the Constitution
from serving as an effective restraint. Does this reduce the
Court to a small group of willful individuals who simply vent
their political beliefs upon the public? Are there any restraints
other than self-discipline?
The structure of the Erie revolution indicates that the de
facto validity of basic legal principles is a matter of individual
Justices' nonrational, personal values and experiences. That certainly is the case in the context of an actual legal revolution.
Even in the case of stable doctrine-like Swift in the nineteenth
century-the doctrine's continuing validity is based upon consistency in the individual Justices' values and experiences. To say,
however, that judicial decision making (even by an unreviewable
Supreme Court) is a matter of individual preference seriously
obscures the existence of powerful restraints.
1.
The Interpretive Community of Judges
In recent years Owen Fiss and Stanley Fish have presented
engaging models of the judicial process based upon the shared
professional experiences of judges who interpret authoritative
texts. 275, Professor Fiss draws upon the concept of an interpretive community276 to argue that judges' common professional
experiences give rise to shared disciplining rules. Using Brown v.
274. This debate is centered upon the extent to which the Supreme Court draws and
should draw upon values outside the written Constitution to fashion constitutional
doctrine. Representative participants in the debate are briefly discussed in G. GUNTHER,
CONSTITUTIONAL LAW 20 n.9, 528-29 (11th ed. 1985).
275. Fish, Fish v. Fiss, 36 STAN. L. REv. 1325 (1984) [hereinafter Fish, Fish]; Fish,
Interpretation and the Pluralist Vision, 60 TEX. L. REv. 495 (1982) [hereinafter Fish,
Interpretation]; Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60
TEX. L. REV. 551 (1982) [hereinafter Fish, Working]; Fiss, Conventionalism, 58 S. CAL. L.
REv. 177 (1985); Fiss, Objectivity and Interpretation, 34 STAN. L. REv. 739 (1982)
[hereinafter Fiss, Objectivity].
276. This idea of an interpretive community was borrowed from Professor Fish. See
generally S. FISH, Is THERE A TEXT IN THIS CLASS? (1980); Fish, Fish, supra note 275 (a
response to Prof. Fiss); Fish, Interpretation, supra note 275; Fish, Working, supra note 275.
HeinOnline --- 62 Tul. L. Rev. 953 (1987-1988)
954
TULANE LAW REVIEW
[Vol. 62
Board ofEducation 277 as a paradigm, Professor Fiss maintains
that the Justices~ freedom to decide that case was in fact constrained by shared rules, "some that required them to pay attention to precedents, others that directed their attention to the
purposes of the Civil War and the fourteenth amendment, and
still others that precluded them from favoring one side over the
other simply because of the race of the parties."278 Under this
analysis, the disciplining rules~ validity is founded upon the historical fact that the interpretive community of judges happen to
subscribe to the rules.
The idea of an interpretive community suggests that individual Supreme Court Justices are subject to powerful internal
constraints. The average Justice is a little over fifty years old
when appointed to the Court279 and has experienced a successful
professional career. These mature individuals do not arrive at
the Court with empty heads. They have been thoroughly professionalized. They have strong convictions and firm understandings about society in general and law in particular. This
extensive professional experience operates as a powerful restraint
upon judicial discretion. Taking an example from the Erie
revolution, Justice Holmes was theoretically free to convert to
the older oracular faith after he became a Justice~ but this possibility would have been wildly unlikely. He was bound by the
matrix of rules and experiences that ordered his intellectual
life. 280
In addition to the very real restraints of preexisting personal beliefs, a Justice is restrained by public values. This certainly is the case to the extent that a Justice may feel selfobligated to implement public values. In addition, however, the
Court's mandates will serve little useful purpose if they are radically inconsistent with prevailing political forces outside the
Court. In Brown v. Board ofEducation, the Justices consciously
shaped the remedial impact of their decision to assuage antici277. 347 U.s. 483 (1954).
278. Fiss, Conventionalism, supra note 275, at 185; see also Fiss, Objectivity, supra
note 275, at 754.
279. See J. SCHMIDHAUSER, supra note 265, at 96.
280. Professor Fish argues in more detail that this particular form of self-restraint is a
powerful and perhaps the only significant restraint upon judicial decisionmaking. See Fish,
Fish, supra note 275, at 1332-47; see also Fish, Anti-Professionalism, 7 CARDOZO L. REV.
645 (1986); Fish, Working, supra note 275.
HeinOnline --- 62 Tul. L. Rev. 954 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
955
pated objections by power groups outside the Court. 281
The shared disciplining rules of the community of judges
also operates as a powerful external restraint upon individual
Justices. The historical existence of specific shared disciplining
rules provides a basis for communication among judges and
attorneys prior to reaching judgment in a particular case. Furthermore, any resolution of a particular problem goes for naught
unless a majority of the Justices agree. This requirement of
group decision making greatly reduces the possibility of aberrant
decisions. After judgment is rendered, the shared rules also provide a more or less objective basis for assessing the validity of the
Court's decision.
This model of an interpretive community of judges constrained by discipling rules is appealing and helpful, but the
model is too limited. Professor Fiss uses Brown as a paradigm,
but his account of the decision implausibly ignores the Justices'
personal attitudes toward state-sponsored racial segregation. 282
He arbitrarily limits his disciplining rules to seemingly value
neutral-even amoral-restraints upon the process of judicial
decision making. But Brown is notorious for being difficult to
explain in terms of neutral constitutional principles. 283 A more
plausible explanation of Brown is that the Justices overruled
Plessy v. Ferguson 284 because they personally thought that statesponsored segregation was wrong. 285 When Brown is viewed in
this light, the decision to overrule Plessy replicates the structure
of the Erie revolution. Both Swift and the "separate but equal"
doctrine were functions of nineteenth century Justices' otherwise
281. See R. KLUGER, SIMPLE JUSTICE ch. 26 (1975); B. SCHWARTZ, SUPER CHIEF
ch. 3 (1983).
282. Professor Fiss writes that an individual who evaluates state sponsored racial
segregation on the basis of personal attitudes about the fairness or propriety of segregation
"stands outside of the interpretive community [of judges]. . . . In that instance, the
evaluation is not in terms of the law." Fiss, Objectivity, supra note 275, at 749; accord Fiss,
Conventionalism, supra note 275, at 183.
283. See, e.g., P. BREST & S. LEVINSON, PROCESSES OF CONSTITUTIONAL
DECISIONMAKING 431-36 (2d ed. 1983); Wechsler, Toward Neutral Principles of
Constitutional Law, 73 fuRV. L. REv. 1,31-35 (1959).
284. 163 U.S. 537 (1896).
285. See, e.g., Justice Jackson's statement in conference" 'our problem is to make a
judicial decision out of a political conclusion'-to find 'a judicial basis for a congenial
political conclusion.''' B. SCHWARTZ, supra note 281, at 89 (quoting Jackson). The
simple faith that state sponsored racial segregation is wrong is not and was not necessarily
based exclusively upon moral convictions. Other, more pragmatic, considerations also
were at play in the 1950s. See Bell, Brown v. Board of Education and the InterestConvergence Dilemma, 93 fuRV. L. REv. 518, 524-25 (1980).
HeinOnline --- 62 Tul. L. Rev. 955 (1987-1988)
956
TULANE LAW REVIEW
[Vol. 62
unrelated beliefs regarding race relations286 and legal theory.
Erie reflected a change in belief about the nature of law, and
Brown was the result of an equally drastic change in attitude
towards race relations.
Expanding the scope of the discipling rules to include the
Justices' personal beliefs regarding racial segregation clarifies the
political nature of the process of constitutional adjudication: of
course the Justices' personal beliefs playa major role in their
voting patterns. This clarification, however, does not tum the
process into the unbridled exercise of raw political power. Plessy
and Brown may legitimately be described as a function of two
different panels' beliefs about segregation, but casting the model
solely in terms of judges' beliefs obscures a final powerful
restraint upon Justices totally beyond their individual control.
2.
The Justices Class as an Interpretive Community
The similarity between the legal revolutions symbolized by
Brown and Erie suggests a basis for stability in and restraint
upon judge-made doctrine. The core of both decisions is
unshakeably stable. Overruling Brown is unthinkable and would
be morally wrong, but morality is not the immediate basis for
the decision's stability. Returning to state-sponsored racial segregation is as unlikely as returning to the Swift doctrine-not
because the two doctrines are morally wrong but because they
are an anathema to the vast majority of the Justices Class. 287
286. The Court's opinion in Plessy was writen by Justice Brown. For an analysis of
his attitudes consistent with the statement in the text, see Glennon, Justice Henry Billings
Brown: Values in Tension, 44 U. COLO. L. REV. 553, 599-602 (1973).
287. A return to Swift v. Tyson would require an abandonment of legal positivism but
would not necessitate a return to eighteenth century natural law thinking. For example,
those members of the Critical Legal Studies movement who heavily emphasize
deconstructionism could plausibly argue that binding legal rules do not exist-that judges
are autonomous interpreters who do justice in particular cases according to their individual
ideologies. If this deconstructionist analysis is valid, a return to the freewheeling days of
Swift could be justified. See Green, The Law as Precedent, Prophecy and Principle: State
Decisions in Federal Courts, 19 ILL. L. REV. 217 (1924); see also Corbin, The Restatement
o/the Common Law by the American Law Institute, 15 IOWA L. REV. 19,24-28 (1929); cf.
Brown, supra note.225, at 191 (the federal courts "almost invariably [reach] the superior
rule"). A similar philosophy probably led Jerome Frank to complain that federal courts
were now "to play the role of ventriloquist's dummy to the courts of some particular state."
Richardson v. Commissioner, 126 F.2d 562, 567 (2d Cir. 1942); see also Corbin, The Laws
o/the Several States, 50 YALE L.J. 762 (1941).
The model of the Erie revolution provides a basis for assessing the merits of a
deconstructionist critique of Erie. The critique is as valid as legal positivism was in 1842
when Swift was decided and the oracular model was in 1938 when Erie was decided.
HeinOnline --- 62 Tul. L. Rev. 956 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
957
This analysis is not based upon a methaphysical collective mind
of the Justices Class. It is a mere matter of statistics. There simply is no significant mathematical possibility that enough individuals subscribing to the old faiths will be appointed to the
Court to create a majority.
In contrast to Erie and Brown, the Supreme Court's treatment of the first amendment's establishment clause presents a
paradigm of unstable constitutional doctrine. 288 The extent of
disharmony in this area is indicated by the coexistence of Wolman v. Walter,289 which forbade the states to provide maps to
parochial schools, and Board ofEducation v. Allen,290 which permitted textbooks to be supplied. This disarray in the establishment clause cases is readily explicable as a reflection of a
fundamental conflict of belief in society-or to be precise, in the
Justices Class. There always has been and probably always will
be a sharp disagreement in the United States between accomodationists and separatists about the proper relationship between
church and state. 291 Given this conflict within the Justices
Class, a consequential conflict on the Court itself is virtually
inevitable. 292
The Court's current approach to resolving establishment
clause problems involves a three-pronged test based upon the
purpose and effect of challenged governmental activities and
whether the activities will foster excessive government entanglement with religion. 293 This test, however, is so flexible that in
Lynch v. Donnelly 294 five Justices were satisfied that a municipal
nativity scene met all three requirements while the remaining
four Justices believed that the same activity met none of the
288. "The constitutional law of religion is 'in significant disarray.''' Tushnet, The
Constitution of Religion, 18 CONN. L. REv. 701, 701 (1986) (quoting Pepper, The
Conundrum of the Free Exercise Clause-Some Reflections on Recent Cases, 9 N. Ky. L.
REv. 265, 303 (1982»; see also Johnson, Concepts and Compromise in First Amendment
Religious Doctrine, 72 CALIF. L. REv. 817, 839 (1984) ("Doctrinally, first amendment
religion law is a mess.").
289. 433 U.S. 229 (1977).
290. 392 U.S. 236 (1968).
291. See generally A. REICHLEY, RELIGION IN AMERICAN PUBLIC LIFE (1985); see
also Developments in the Law-Religion and the State, 100 HARV. L. REv. 1606, 1631-39
(1987).
292. Another symptom of the conflict is the prevalence of 5-4 decisions in
Establishment Clause cases. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984); Mueller v.
Allen, 463 U.s. 388 (1983); Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976)
(4-1-4 decision); Everson v. Board of Educ., 330 U.S. 1 (1947).
293. Lemon v. Kurtzman, 403 U.S. 602 (1971).
294. 465 U.S. 668 (1984).
HeinOnline --- 62 Tul. L. Rev. 957 (1987-1988)
958
TULANE LAW REVIEW
[Vol. 62
requirements. This flexible approach has yielded a stream of
irreconcilable holdings that probably reflect the ebb and flow of
accomodationist and separatist majorities on the Court. 295 The
problem of irreconcilable holdings might be resolved by adopting a significantly less flexible standard that would restrict the
Justices' discretion to vote their underlying beliefs,296 but an
inflexible standard is subject to being overruled when attrition
promotes erstwhile dissenters to majority status.
Roe v. Wade 297 illustrates the problem of inflexible standards that do not reflect a concensus within the Justices Class.
Roe fundamentally involves a conflict between basic, and in the
context of abortion, irreconcilable beliefs regarding the sanctity
of human life and state interference with personal privacy.298 A
Justice's personal convictions regarding privacy and the sanctity
of life are powerful emotional attitudes essentially foreign to
logic and reason. The nature of these powerful attitudes militates against the existence of judges who are agnostic on the
abortion issue and suggests the possible futility of arguing for or
against Roe's continuing validity. Those who rail against Roe do
little more than announce the nature of their a priori belief in the
sanctity of human life. This pronouncement, like preaching to
the choir, is persuasive only to those who share the critic's faith.
If a particular Justice resolves the conflict in favor of life, less
powerful commitments like faith in the desirability of stare decisis will have scant influence.
The lessons of Erie, Brown, the establishment clause cases,
and Roe indicate that the interpretive community consisting of
the Justices Class has a controlling influence upon constitutional
doctrine. An individual Justice cannot implement personal values without the consent of a majority of the Court. The coincidence of shared values on the Court is the determinative factor
in the resolution of particular cases and the consequent creation
or reaffirmation of doctrine. But the stability of constitutional
295. To be sure there have been areas where the separatists and accomodationists
have found common ground, and within these areas the Court's decisions have been
relatively consistent. See, e.g., the school prayer cases. Wallace v. Jaffree, 472 U.S. 38
(1985); Abington School Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S.
421 (1962).
296. See e.g., Edwards v. Aguillard, 107 S. Ct. 2573 (1987), in which Justice Scalia
concluded his dissent with a plea "that we [should] sacrifice some 'flexibility' for 'clarity
and predictability.''' ld. at 2607.
297. 410 U.S. 113 (1973).
298. See L. TRIBE, AMERICAN CoNSTITUTIONAL LAW 921-33 (1978).
HeinOnline --- 62 Tul. L. Rev. 958 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
959
doctrine is largely a function of the extent that the doctrine is
consistent with predominant faith within the Justices Class that
supplies future Justices who will reaffirm the doctrine. With a
good deal of slippage, attrition on the Supreme Court assures
that constitutional doctrine will track the predominant values of
the Justices Class.
The values of the Justices Class are both controlling and
uncontrollable. The creation of these values is a complex process of socialization and professionalization that is difficult to
manipulate in the case of an individual and impossible to manage with respect to the entire class. Taking the Erie revolution
as an example, a number of factors influenced the creation of a
predominantly positivist Justices Class. The rise of inexplicable
conflict299 and the introduction of the case method3°O were influential professional experiences. In addition, however, extra-professional factors like the American Civil War, the ideas of
Charles Darwin, and the rise of pragmatism undoubtedly were
consequential. 301 The relationships among these factors and the
ways that they affected elite attorneys are exceptionally complex.
No single factor was determinative. Rather each factor tugged
individuals toward positivism, and the strength of the tug probably varied from individual to individual. 302 This interrelationship of influences is too complex to be managed in any
significant way by any person or group of persons. 303 In this
sense, the predominant class values are objective304 and serve as
external restraints upon judicial discretion.
299. See supra notes 199-225 and accompanying text.
300. See supra notes 226-44 and accompanying text.
301. See supra notes 250-53 and accompanying text.
302. Thus the case method of instruction surely was influential, but this influence was
not absolute. See supra notes 236-44 and accompanying text.
303. Class values may be beyond human control, but predominant values on the
Supreme Court itself are subject to manipulation through the appointment process. This
form of manipulation is common place in American political history but has only slight
significance for the long-term evolution of constitutional doctrine. If the appointment
process produces Justices who subscribe to predominant values in the Justices Class, the
impact is scant. Even if an aberrant majority is created on the Court, ordinary attrition
should correct any consequent aberrant doctrine.
An aberrant majority on the Court can have a significant impact while the majority
survives. There is a structural objection to these aberrations insofar as the result is unstable
doctrine that will have to be corrected through attrition. In the short run, however, the
democratically elected appointing and consenting authorities will, in their eyes, have
accomplished untold good by temporarily altering constitutional doctrine.
304. This particular concept of objectivity is developed in more detail in Fiss,
Objectivity, supra note 275.
HeinOnline --- 62 Tul. L. Rev. 959 (1987-1988)
960
TULANE LAW REVIEW
[Vol. 62
The structure of constitutional adjudication evidenced by
the Erie revolution is conservative and amoral. At the same
time, however, the model explains change and reaffirms the profoundly moral nature of constitutional law. The model posits
constitutional law as an imperfect, amoral mirror that reflects
the personal beliefs of individual Justices. A principle that has
the support of the Justices Class is the strongest possible
restraint upon undesirable government action. Likewise, principles that lack this support are, in James Madison's words, little
more than "parchment barriers."305 When new values supplant
old ones within the Justices Class, constitutional doctrine based
upon the obsolete values sooner or later will be abandoned,306 as
was the case in Brown and Erie.
C.
Conclusion: The Possibility of Objective Discourse
The fundamental and ironic lesson of the Erie revolution is
that Supreme Court Justices cannot create lasting revolutionary
changes. Revolutionary decisions from the Court simply reflect
changes in faith that already have occurred within the Justices
Class. To borrow from Justice Story,307 the Court's decisions
are but the formal promulgation of rules antecedently existing in
the Justices Class. Of course Story would have balked at a
model of decision making founded ultimately upon subjective
faith rather than reason.
Subjective faith plays the fundamental role in the Court's
decision making, but this primacy of faith does not preclude
305. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in 11
THE PAPERS OF JAMES MADISON 295, 297 (R. Rutland ed. 1977). Madison continued,
"[w]hereever the real power in a Government lies, there is the danger of oppression. In our
Governments the real power lies in the majority of the Community, and the invasion of
private rights is chiefly to be apprehended, not from acts of Government contrary to the
sense of its constituents, but from acts in which the government is there mere instrument of
the major number of the constitutents." Id. at 298 (emphasis in original).
306. This does not quite end the argument. Undesirable values might pervade the
Justices Class, and those values inevitably would seep into constitutional doctrine. In
addition, the Justices Class is an elite community from which significant groups are largely
excluded. Therefore, the substantive content of constitutional law does not necessarily
reflect deeply held values of the politically disenfranchised. If the Justices Class model
accurately describes the process of constitutional adjudication, these criticisms are
irrelevant to the model. Moral criticism of the model cannot change the fact of the model's
existence. Of greater importance, the model suggests that the aspirations behind these
criticisms may be attained either by changing the values of the Justices Class or by
changing the prerequisites for membership in the class.
307. See supra note 91 and accompanying text.
HeinOnline --- 62 Tul. L. Rev. 960 (1987-1988)
1988]
CONSTITUTIONAL REVOLUTIONS
961
objective persuasion and criticism. 308 For example, the historical (which is not to say rational) existence of particular shared
faiths establishes the validity of and suggests the weight to be
assigned to particular legal arguments. Within this framework,
meaningful advocacy and criticism turns upon an individual's
ability to explain relationships among shared faiths that suggest
the proper resolution of particular cases. 309 Persuasive discourse
among Justices and between Justices and advocates involves
communicating with a single clearly defined community - the
Justices themselves. Therefore, discourse in this context is futile
unless the persuader pleads to the existing shared faiths of a
majority of the Court.
The ability to explain relationships among shared faiths is
especially important in persuading agnostic Justices who are not
committed to a single overriding faith. In some cases, a majority
of the Court may be agnostic. In other cases, determinative
swing votes may be held by agnostics. In Erie, an agnostic Justice might have been persuaded by the following argument:
A settled doctrine of almost one hundred years standing usually should not be overruled. Stare decisis is doubly compelling
in the case of a statutory interpretation in which Congress has
acquiesced for nearly a century. There is no clear concensus
regarding the desirability of the Swift doctrine. Compare
Yntema, The Jurisdiction ofthe Federal Courts in Controversies
Between Citizens of Different States, 19 A.B.A. J. 71, 74-75
(1933) with Frankfurter, Distribution of Judicial Powers
Between Federal and State Courts, 13 CORNELL L.Q. 499, 52430 (1928). Since no issue of constitutional law is involved, correction of the Swift doctrine should be left to Congress. See
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-10
(1932) (Brandeis, J., dissenting).
The strength and objectivity of these arguments for reaffirming
Swift would have been based entirely upon the extent to which
they might have evoked shared faiths among the Justices. 310
In contrast to persuasive discourse, criticism of the Court
308. This essay was influenced by and is consistent with the Swedish Legal Realism
of AIf Ross. See A. Ross, supra note 1; see also A. Ross, TOWARDS A REALISTIC
JURISPRUDENCE (A. Fausboll trans. 1946). For Professor Ross's systematic analysis of
persuasion and criticism, see A. Ross, supra note 1, at ch. 14-17; see also Fish, AntiProfessionalism, supra note 279, at 673-77.
309. Accord Kaplan, Encounters with O. w: Holmes, Jr., 96 HARV. L. REv. 1828,
1850 (1983) (able judge's explanation of collegial decisionmaking process).
310. The argument apparently would not have persuaded Chief Justice Hughes and
Justice Reed. See 2 M. PUSEY, supra note 16, at 711; Erie R.R. v. Tompkins, 304 U.S. 64,
HeinOnline --- 62 Tul. L. Rev. 961 (1987-1988)
962
TULANE LAW REVIEW
[Vol. 62
and its doctrine involves multiple communities. Critics who
share the faiths of the Court and the Justices Class speak to a
community of shared traditional values and play a significant
role in the reaffirmation, clarification, and incremental change of
contemporary doctrine. They are engaged in the legal analog of
what Thomas Kuhn calls "normal science."311 The plight of the
radical critic is different. A critic who rejects the faiths of the
Justices Class and who seeks radical change must address two
communities: the radical critic's own community and the Justices Class. The critic's own community will warmly embrace
the radical work of its members and provide essential emotional
support. But mature members of the Justices Class quite predictably will reject radical criticism contrary to their shared
faiths. There will be no radical change in Supreme Court doctrine until the erstwhile radical faith becomes the predominant
faith of the Justices Class. Of course, at that point the new prevailing faith no longer will be radical.
90-92 (1938) (Reed, J., concurring). But Reed and Hughes were not agnostic. See supra
notes 144-45, 241 and accompanying text.
311. See supra note 19 and accompanying text.
HeinOnline --- 62 Tul. L. Rev. 962 (1987-1988)