Courts or Tribunals? Federal Courts and the Common Law

Peter L. Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala. L. Rev. 891 (2002)

The middle section, on Swift and Erie, are most interesting to me.

At 908: "Whether federal courts are permitted to be lawmakers might seem to have been settled, as Justice Jackson argued, by the Constitution's creation of a judiciary in the familiar English mold and reference in constitutional text to such common law concepts as the sanctity of contracts." Cites D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942) (Jackson concurring).

At 909: "[O]ne might suppose that the constitutional description of judicial power ... imagined that the federal courts ... would be courts in the ordinary understanding -- that is, common law courts or equity courts ... ."

At 911, describing a potential argument the lawyers in Swift could have made: "[C]ommon law judgments properly articulated by the Supreme Court independent of state common law -- that is, within the reach of the federal lawmaking authority -- would be among the "Laws ... made, under the Authority of the United States." (Quoting the Supremacy Clause, I think.)

At 913, a quote from Purcell (see below) to the effect that certain Supreme Court Justices, while voting to limit Congressional power within the text of the Constitution, also sought to extend the judicial power beyond Article I limits. Erie, then, should be understood to repudiate this understanding, i.e. to stand for the idea that the federal courts are limited in the same way that Congress is.

References

United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)

Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (2000)