Reconstructing Erie: A Comment on The Perils of Legal Positivism

George Rutherglen, Reconstructing Erie: A Comment on The Perils of Legal Positivism, 10 Const. Comment. 285 (1993)

Quotes Guaranty Trust for proposition that Erie ushered in a new way of looking at law, i.e. positivism.

Says that the argument Brandeis used to overturn Swift v. Tyson was that the federal courts had overstepped their constitutional bounds -- given a limited federal government, and given that the main lawmaking power is given to Congress, "[o]f course the power of the federal courts to make law could not exceed the power of Congress ... ." (287)

Notes the famous Wechsler argument about the political safeguards of federalism, and notes that such safeguards don't exist for the courts -- there is no state representation in the federal court system. "Any major extension of federal power must finds its source in the Constitution or in a federal statute, not in the common law decisions of federal judges alone." Therefore, "[t]his argument is the best current account of Erie as a fundamental principle of federalism."

"General common law violates [the requirement that judicial decisions be back by the power of the state] because it is based on the law of no particular sovereign. Brandeis departed from Swift v. Tyson then, in insisting that the general common law recognized in the federal courts must be federal law. And once this step was taken, it was necessary to find some source for the federal general common law in the Constitution. Because Brandeis could find no such source, he concluded that there was 'no federal general common law.'" (291-92)

"[The positivist argument of Erie] cannot stand alone without falling of its own weight. It must therefore be supported by other arguments of constitutional structure." (295)

References

Guaranty Trust Co. v. York, 326 US 99 (1945)

John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974)

Paul J. Mishkin, Some Further Last Words on Erie -- The Thread, 87 Harv. L. Rev. 1682 (1974)

Citing references

Jack Goldsmith & Steven Walt, Erie and Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998)