John Louis
The Rise and Demise of the General Federal
Common Law:
Diversity Jurisdiction and Constitutional
Development from Swift (1842) to Erie
(1938)
The courts
of justice are the visible organs
by which the
legal profession is enabled to control the democracy [i]
-
Alexis de
Tocqueville
The Priests
of Athens had their goddess of wisdom: it was this Minerva.
The Lawyers
of the English school have her twin sister, their Goddess of Reason.
“The Law”
says one of her chief priests, Blackstone, “is the perfection of reason.”[ii]
-
Jeremy Bentham
INTRO:
In 1938, then Solicitor General Robert Jackson wrote, “On April 25 of this year there occurred
one of the most dramatic episodes in the history of the Supreme Court, with the
overruling of the 96-year old doctrine of Swift
v. Tyson.”[iii] The drama: Erie
Railroad v Tompkins (1938). That
same year Yale Law Professor, Harry Shulman, commented that the Court in Erie, “did not merely overrule Swift v. Tyson and the Black & White Taxicab case. It declared unconstitutional a
"course" of conduct in which the federal courts had engaged almost
daily since 1842. It destroyed the effect as precedents of literally hundreds,
perhaps thousands, of federal cases in which the doctrine of Swift v. Tyson was
applied.”[iv]
