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]
Swift v. Tyson was not a constitutional case, in the formal sense.[v] Swift was a contract case involving
negotiable instruments. Erie Railroad at
least purported to be. What turned a
question about civil procedure in private common law cases under diversity
jurisdiction into a landmark decision?
Section [I] analyzes Swift
v. Tyson: the case, the doctrine, and its “pro-competitive” Constitutional
theory. Part [II] argues that ambiguities in Story’s decision provided
interpretive space for subsequent Constitutionalization
of Swift which expanded both the
breadth and the depth of the general federal common law. The paper then traces Swift’s Constitutional development in two parts: [III] the
late-nineteenth century incorporation of the “fellow-servant” rule, into the general federal common law,
and the assertion of “federal judicial control over the field of tort law” in Balitmore & Ohio Railroad Co. v. Baugh
(1893);[vi] and [IV] the 20th
century progressive backlash against the Federal Courts, which painted the
Court’s “pro-competitive” doctrine as a one-sided play to Corporate interests.
Section [V] provides an analysis of Erie
v. Tompkins as a progressive solution to the problems of Swift. Lastly, part [VI] offers brief
discussion of Erie’s definitive
consequences for Michael S. Greve’s broader Constitutional theory.
I.
Swift v. Tyson: from Statutory Interpretation to General
Federal Common Law
Black’s law dictionary defines diversity jurisdiction as “A
federal courts exercise of authority over a case involving parties who are
citizens of different states.” Federal judicial authority in cases of diversity
jurisdiction is granted by Article III, Sec 2 of the Constitution which reads: “The
judicial power shall extend to all cases, in law and equity, arising under this
Constitution… between citizens of different states...”[vii]
For example, take
a hypothetical case in which plaintiff ME , sues defendant NY. Plaintiff ME, as
first mover, chooses from three potential forums under diversity jurisdiction:
[1] ME state court, [2] NY state court, or [3] Federal Court. If we assume (for
good reason) that ME state court will give ME plaintiff a favorable treatment over
the NY defendant, the presence of systematic , “anti-competitive” bias obviates the need for the Federal Courts
to intervene as an “impartial” third-party.[viii] The Constitution clearly grants
federal courts authority under diversity jurisdiction, yet remains silent on
the question of when faced with such situations “what law are federal
courts to apply?”[ix]
That was essentially
the question before the court in Swift.
If the defendant removed a case from state court to federal court, must Federal
Courts decide the case under state law or could the federal courts arbitrate
independently under “federal” common law? Congress had given some direction on
this issue. Section 34 of the Judiciary Act of 1789 reads: “The laws of the several states, except where the Constitution
or treaties of the United States or Acts of Congress otherwise require or
provide, shall be regarded as rules of decision in civil actions in the courts
of the United States, in cases where they apply.”[x] The court needed to
interpret the clause “the laws of the several states.” Defining “the several
states” was straight forward. What constituted “laws” offered more interpretive
space.
Writing for the Court, Joseph Story put
forth a definition of “laws” that rested on a theoretical understanding of law
as expression of “the principles of natural
justice.”[xi] Story’s opinion declared, “In the ordinary
use of language, 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.” Judges discovered evidence of laws, but did not
“make law.”
In Story’s opinion, “laws” could only mean “local
statutes and local usages.” He
proclaimed that state common law rules did “not extend to contracts and other
instruments of a commercial nature.” Rather Story argued, “The true
interpretation… [is] to be sought not in the decisions of the local tribunals,
but in the general principles and doctrines of commercial jurisprudence.” [xii]
Legal scholars have read this addition of “doctrines of
commercial jurisprudence” in different ways. William A. Fletcher notes that the
Supreme Court held “ in Swift v.
Tyson that it was not bound by
section 34 of
the Judiciary Act
of 1789 to
follow state court decisions
on matters of
general commercial law.”[xiii] Greve goes on to
recognize that the ruling in Swift granted the Federal Judiciary the power to
apply, “a general federal common law” in “certain” commercial cases. Jackson as Solicitor General took a more
expansive view and proclaimed that as a consequence of Swift, “the Federal
courts were free to apply the so-called federal common law as developed by the
Federal courts in the exercise of their independent judgment.”[xiv]
II.
Constitutionalizing
Swift: Ambiguity and Interpretive
Space
Greve notes that the Swift decision “contained two
fundamental ambiguities” which he describes in terms of ‘breadth’, or what
types of cases, and ‘depth’, or what types of
laws. These ambiguities in Story’s opinion in Swift provided space for interpretation, and expansion of judicial
authority under general federal common law.
The first wave of Constitutionalization focused on increasing
Swift’s depth. In Rowan v. Runnels (1847) the federal
court assumed the authority under Swift to
independently decide the meaning of the Mississippi Constitution
“notwithstanding the Mississippi Supreme Court’s conclusive interpretation.”[xv] In Watson v. Tarpley (1856) the Supreme Court used the general federal common law to “decide for the
plaintiff [out of state creditor], in derogation of the Mississippi statute”.[xvi] While Swift granted federal common law the
authority to supersede the judgments of state courts, subsequent constitutional
development proved that legislative acts and even constitutional law were not
beyond the reach of federal diversity power.
Federal courts continued to expand on Swift. According to Edward Purcell Jr., “during the second half of
the nineteenth century, the federal courts ignored state court decisions with
increasing frequency.”[xvii] As Swift got
deeper “many, especially elite lawyers and national corporations [felt] the
federal courts were establishing a nationally uniform common law.”[xviii] Uniform law
would reduce coordination problems, lower transactions costs, and “facilitate
interstate commerce in the burgeoning national market.”[xix] But uniform law
would also deprive plaintiffs of access to rents guaranteed by “local
prejudice”.[xx]
III.
To the Limits of Swift: “Fellow Servant” and the
Apotheosis of Federal Judicial Power
Article III, Section 2 of the Constitution reads: “The
judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall
be made, under their authority.” Purcell Jr. wrote, “The federal judiciary’s
paramount power lay in its equity jurisdiction.”[xxi] Equity jurisdiction
included: ”A suit brought for the
enforcement or protection of a private right or the prevention of or redress
for an injury where there is no plain, adequate, and complete remedy at law.”[xxii] As the Oregon legal dictionary describes the practice of
equity rulings under the common law, “Essentially,
judges were empowered to use equity or fairness to decide cases in which the
law did not appear to address the issue at hand.”[xxiii]
Equity cases depended on the common law. In Brandies
and the Progressive Constitution , Purcell argues that Justice Brewer and
the Fuller Court used “the Swift Doctrine”
to “assert federal judicial control over the field of tort law, especially over
personal injury claims by employees against their employers.”[xxiv] In Baltimore & Ohio Railroad Co. v Baugh,
the Court pushed Swift deeper and
wider marrying authority to settle tort suits with the “fellow-servant” rule
for Corporate liability.[xxv]
Labor reacted strongly against
the “fellow-servant” rule.[xxvi] By
restricting employer liability, the Court’s holding in Baugh discouraged “employee tort suit claims” and “relieved…
companies of potentially serious liabilities.”[xxvii] The
uniform exit option presented by the adaptations of Swift undoubtedly helped facilitate the growth and integration of
the national market.[xxviii]
But, increasingly in diversity cases the Court’s “allegiance” was clear.[xxix]
Procompetitive as the Swift doctrine
can be read, the Court’s expansive adaptations led to decisions that often
favored “out of State defendants”, over local Plaintiffs, and State Governments.[xxx]
As the general federal common law
transmogrified, the Court continued to push the limits of Swift . [xxxi]In Kansas v Colorado gave the Court an
opportunity to answer the question, “what law are federal courts to apply”, under diversity
arising under conflicts between the States. Brewer seized the chance to
exercise judicial power. Writing for the Court he declared, “In matters not
delegated to Congress, where power was reserved not to the states but to ‘the
people,’ the national courts were necessarily the authorized voice of a truly
‘national common law’.”[xxxii] For Brewer,
federal judicial power was “authorized by the Constitution itself” and was
therefore unlimited in diversity cases.[xxxiii]Purcell argues
that Kansas v. Colorado “elevated the
federal judiciary to a position of constitutional authority over both Congress
and the states”.[xxxiv]
The general federal common law gave the judiciary a powerful weapon
in its armory of doctrinal protections for the emerging national economy.
Supplementing substantive due process protections for liberty of contract as a
spearhead against “anti-competitive” State legislative interference, the
expansion of the general federal common
law provided a similar check against “anti-competitive” State judicial
interference. The Court’s pre-New Deal doctrines helped encourage national
legal uniformity, but in pushing an aggrandized notion of federal judicial
power aroused hostility from localized interest.
Greve contends that “independent” Federal judicial authority is
necessary to maintain a competitive Constitutional framework – designed to
maximize consumer surplus for the people, rather than protect the producer. If
allowed to design their own rules, States will seek to capture surplus by
extracting rents from “out of state” parties. Deference to state law and state
courts invites a frenzy of adversarial
legalism designed to take advantage of variation in jurisdictional rules.[xxxv]
In a repudiation of conventional wisdom, Greve argues, Erie exacerbated the alleged forum
shopping problem it alleged to be consequence of Swift. Under Swift, the
forum shoppers could select the federal common law -- “free” of all “local
prejudice”. Erie took away that choice, and placed authority under state legal
authority sure to abandon “competitive federalism.”
Yet, Constitutional theories of judicial power must answer
the question “who guards the guardians?”[xxxvi] If the general federal common law doctrine established in Swift worked to protect “the people”,
did it work to protect a particular type of “person”?[xxxvii] The next section
describes the Progressive reaction against Judicial Power in the early 20th
century.
IV.
Progressive Reaction: Legal Positivism, Corporatism and the
Backlash of Erie Railroad
Purcell argues, “Diversity Jurisdiction symbolized for both
Progressives and their adversaries the de facto alliance between corporations
and the national judiciary.”[xxxviii] Corporations for
legal purposes are treated as persons with citizenship residing in the state of
incorporation. Most corporations held charters from only one state. As the
national economy expanded and corporations increasingly conducted business
across state lines, the number of diversity jurisdiction cases involving
corporate defendants exploded.[xxxix]
Most plaintiffs filed suit in state Court. Corporations often
chose to exercise their “forum option” and “usually removed those suits
whenever they could… [defending] their preference for federal courts on two
grounds.” Federal courts: [1] removed “local prejudice” and [2] provided “the
uniformity of the federal common law.”[xl] Federal courts
relying on Swift developed
pro-business employer liability, and labor injunction doctrines. The increasingly pro-corporate thrust of the
Court’s jurisprudence galvanized detractors and helped forge a broad coalition
of prospective law reformers including: “Populists, Progressives, labor
representatives, and plaintiff’s lawyers.”[xli]
Populists echoing the sentiments
of Jacksonian democrats derided Court doctrine for its anti-democratic
principles as Federal Courts routinely disregarded statutory enactments.[xlii] Progressives
shared this view, and saw the Court as working to protect the interests of
national corporations over those of “the people.” Restrictive workers’ rights,
wide-spread use of the labor injunction, and pro-employer liability laws drew
criticism from Progressives and labor leaders.[xliii] Plaintiffs’
lawyers looking to capitalize on local bias and score big in State Courts watched
verdicts overturned by federal courts relying only on the “general federal
common law.”[xliv]
Resentment over practical
politics found its intellectual voice in Justice Oliver Wendell Holmes, the
Harvard Law School, and a positivistic conception of law that would later gain
the tagline “legal realism.” [xlv] The general
common law rested on a declarative theory of the law rooted in the immutable
principles of the natural law, discovered by judges. Legal positivists,
motivated by advances in scientific theory, saw law as part of a Darwinian
social superstructure subject to gradual evolution as the requirements of the law
adapted to changing societal demands.[xlvi] Motivated by this intellectual framework,
Homes, Frankfurter and Brandies began the assault on Swift.
The attack began with Black
and White Taxicab Co. v. Brown and Yellow Taxicab Co. To obtain a
non-compete injunction a Kentucky cab company reincorporated in Tennessee in
order to have the case removed under “diversity jurisdiction.” The federal
court under general federal common law granted the injunction which the Supreme
Court affirmed. The case presented “flagrant” use of the “diversity
jurisdiction” forum choice for a pro-business decision. [xlvii]
Holmes joined by Brandies and Stone dissented, repudiating Swift. Of the general federal common
law, Holmes declared, “there is no such body of law.”[xlviii] Holmes argued
that State Court decisions applied equally as state statutory law. The federal
courts were required to follow both. Holmes argued the “federal common law” was
not “some brooding omnipresence in the sky” [xlix] and that to advocate Swift was to commit a “Fallacy [that]
has resulted in an unconstitutional assumption of powers by the Courts of the
United States.”[l]
V.
Erie Railroad Co.
V Tompkins: the Case for Constitutional Inversion?
How did Erie change
the constitution? Greve argues “Erie railroad is one of the most central
decisions not just in the New Deal’s Constitution but in the entire history and
architecture of American constitutional law.”[li] Greve’s Erie
marks a seminal shift in judicial power that finalized the New Deal’s
domination. Purcell claims that, “in the name of judicial restraint the ‘New
Deal Court’ announced that it would seldom challenge either state or national
legislatures, especially on issues of economic regulation.”[lii]
Writing for the Court, Brandeis declared in Erie “there is no federal common law”
and held that in diversity cases Federal Courts were obligated instead to
follow the common law rules of state courts.[liii] Greve argues this shift of power from the
federal to state courts promoted federalism that serves “states as states”,
rather than federalism for “the people”; or as Hart Ely intoned sarcastically “the
very essence of our federalism.” [liv]
Erie effectively
removed the corporate exit protection as a protection against “local
prejudice.” Greve contends, “Erie
vindicates plaintiff’s choice of state law… [and] leaves corporate defenders no
exit.”[lv] Attacking
Erie as an anti-competitive doctrine working to empower cartel federalism, Greve argues, “Erie greatly augmented state’s powers….
enhanc[ing] state autonomy in the sense of surplus accumulation, and
correspondingly weakening the power of national institutions to curb that
tendency.”[lvi]
For Purcell, “Brandies sought to restrain federal judicial
lawmaking and to protect the authority of the states.”[lvii] What Brandies
“failed to realize” was that “Swift and
diversity jurisdiction not only expanded federal judicial power but imposed
limitations as well. Erie in holding
federal courts to state common law placed them in “a position of ambiguous
equality” which “crowded their dockets with cases presenting state law issues.”[lviii]Swift avoided imposing that cost.
Erie killed the general
federal common law. Concomitant abdication of judicial power under the commerce
clause left a Court void of weapons to regulate interstate commerce. The court gave Congress, State legislatures
and State courts the green light to regulate commerce. The judiciary abandoned
any pretense of economic influence.
VI – Coda: A
Constitution Revived?
Erie opened up the corporate economy to an emboldened, and
newly bewildering legal complexity; judicial deference over economic regulation
“inverted” the Constitutional framework by making the federal government
subservient to the states. Or as Robert
R. Gassaway asked, “When precisely did this inversion from government
for the People to government for governing elites become entrenched? According
to Mr. Greve, on the morning of April 25, 1938, when Erie was decided.”[lix]
To buy Greve’s argument, we have to believe that the Constitution was
capable not only of establishing a “competitive-federalism” structure, but also
that the judiciary could maintain a “competitive” Constitution against
adversely aligned popular political pressure. To quote the Federalist, “you must first enable the government to control the governed; and in
the next place oblige it to control itself.”[lx]
Courts can attempt and control the government but for so long before being
sucked into the vortex of politics of which they form a part.
Greve admits, “If competitive federalism is
your cup of tea, you’ll want to entrust the federal structure principally to
the courts, armed with federal jurisdiction and competition-protective
constitutional clauses.”[lxi]
Let us grant Greve the premise that “That, in a nutshell, is our Founder’s
constitutional arrangement.” Regardless, his hoped for resurgence of nineteenth
century “institutional practice” would
require the Supreme Court return on itself, and move from Erie back to Swift.
America and the Supreme Court have come a long
way since Erie, and as deleterious as
Mr. Greve suggests it to be, “our federalism” is not likely to pass away soon. [lxii]
Greve asserts, “Competitive constitutions are not designed to guarantee any end
state distribution at all. Instead, they seek to establishes rules for an
institutional repeat game.” Law and
economics may provide us with a formula for how the Constitution’s structure ought to function; but our constitution
does not function as an ideal type.
Rather, as Edward Purcell has suggested, “We may
understand far more about the nation’s constitutional enterprise by
recognizing its social and cultural foundations and its human and institutional
dynamics than by straining to structure sets of formally consistent
propositions or fabricating historical pedigrees for temporarily useful
normative positions.”[lxiii] Society and politics are likely to impose on our
Constitutionalism, as well as “our federalism.” Perhaps, we should not too
easily forget that the Constitution is a part of, not apart from American
politics.
[i]
Tocqueville, Alexis. Democracy in America. Ed. Harvey Mansfield. 2000.
Book I Ch. XVI
[ii] Bentham,
Jeremy. Bentham's Letter: Letter 4:of Completeness as Applied to the Body of the Laws – and Herein
of Common Law. 1817. Reprinted 1882.
[iii] Jackson,
Robert H. The Rise and Fall of Swift v.
Tyson. 24 A.B.A.J. 609 (1938) p.1
[iv] Shulman, Harry, and A. L. C. 1938. The demise
of swift v. tyson. The Yale Law Journal 47 (8) (Jun.): 1336-53.
[v] Greve, Michael S. 2012. The upsidd-down
constitution. Cambridge, MA: Harvard University Press. –
Greve
points out, “Swift is not a constitutional case, and it was not considered by
any Justice to be a federalism case.”
[vi] Purcell Jr., Edward A. 2000. Brandeis and the progressive
constitution: Erie, the judicial power, and the politics of the federal courts
in twentieth-century america. New Haven, CT: Yale University Press. P.52 –
Purcell notes: “brewer used the Swift doctrine, for example, to assert federal
control over the fild of tort law, especially over personal injury claims by
employees against their employers.”
[vii] Cornell
University Law School. Legal Information Institute (L.I.I). http://www.law.cornell.edu/constitution/articleiii
[viii] Shapiro,
Martin. 1986. Courts: A Comparative Political Analysis. University of Chicago
Press. Chicago, IL.
[ix] Greve,
Michael S. 2012. The upside-down constitution.
[x] The Judiciary Act of 1789. 1 Stat. 73. (Sept.
24, 1789) http://www.constitution.org/uslaw/judiciary_1789.htm
[xi] Story,
Joseph. Story's Report: To His excellency Edward Everett, Governor of the
Commonwealth of Massachusetts. Dec. 28. 1836 – Compare with --
[xii] Story, J.
Swift v. Tyson. (1848)
[xiii] Fletcher,
William A. 1984. The General Common Law and Section 34 of the Judiciary Act of
1789: The Example of Marine Insurance. Harvard Law Review Vol. 97, No. 7.
Cambridge, MA. pp. 1513-1580
[xiv] Jackson,
Robert H. p.2 for a different less
“pro-business” treatment see: for a different treatment see: Horwitz, Morton J.
1977 The Transformation of American Law 1780 -1860. Harvard University Press.
Cambridge, MA. – Horwitz argues: “the
quest for legal uniformity that Swift v.
Tyson is supposed to have represented can also be seen more concretely as
an attempt to impose a procommercial national legal order on unwilling state
courts.”
[xv] Greve,
Michael S. 2011. Kindle Edition
[xvi] Ibid…
[xvii] Purcell Jr., Edward A. 2000. P. 51
[xviii] Ibid…
[xix] Ibid..
p.52
[xx]
Greve. Upside-down Constitution
[xxi] Purcell
notes of Justice Brewer: “The Constitution’s true authority, Brewer believed,
came from the fact that it incorporated the principles of the Declaration of
Independence and the divine truth”. He believed the Constitution to command
“absolute and eternal justice.” Brewer also believed that federal common law
under equity was “authorized by the Constitution itself.” SEE Note (1937(,, 50
Harvard Law Review, 1295.)
[xxii] Oregon
legal dictionary. Compare with – Black’s law dictionary which defines equity jurisdiction
as :”In a common law judicial system, the power to hear certain actions
according to the procedure of the court of chancery, and to resolve them
according to equitable rules.”
[xxiii] A suit brought for the enforcement or
protection of a private right or the prevention of or redress for an injury
where there is no plain, adequate, and complete remedy at law.
[xxiv] Purcell
Jr. Eward A. 2000. P.52
[xxv] Ibid..
p.52-54
[xxvi] Witt,
John F. (1989) The Transformation of Work and the Law of Workplace Accidents,
1842-1910. The Yale Law Journal, Vol. 107, No. 5 .Mar. pp. 1467-1502 – the
fellow servant rule: A common-law
rule governing job-related injuries that prevents employees from recovering
damages from employers if an injury was caused by the Negligence of a
coworker.
[xxvii] Purcell.
2000. p.52
[xxviii] United
States v. E.C. Knight Co. 156. U.S. 1 (1895)
[xxix] Purcell.
2000. pp.39-63
[xxx] Western Union Tel. Co. v. Call Publishing Co. - 181 U.S. 92 (1901)
[xxxi] Purcell.
2000 pp.39-63
[xxxii] Purcell.
2000. P.59 SEE ALSO: Hamilton, Alexander. The Federalist. 81
[xxxiii] Purcell.
2000. P.48
[xxxiv] Ibid…
[xxxv]
Kagan, Robert. 2000. Adversarial Legalism: The American Way of Law. Harvard
University Press. Cambridge, MA.
[xxxvi] Raises
the question of is Federalism good for liberty? It depends on how one views the
nature of representation. If people’s liberty is expressed through the
enactments of State Governments, then actions by the General government
contrary to the actions of State Governments are an affront to the liberties of
the people, while at the same time an action of the “we the people” of the
United States.
[xxxviii] Purcell
Jr. Edward. A 2000. P.64
[xxxix]
Ibid…
[xl] Ibid…
p.65
[xli] Ibid…
p.66
[xlii] Eric R. Claeys, The Living Commerce Clause:
Federalism in Progressive Political Theory and the Commerce Clause After Lopez
and Morrison, 11 Wm. & Mary Bill of Rts. J. 403 (2002),
http://scholarship.law.wm.edu/wmborj/vol11/iss1/12
[xliii] For
issues of labor injunction SEE: Culberson, Mr. 1908. Papers Relating to Certain Injunction and
Labor Cases. United States Senate. 60th Congress. 1st
Session. For a general history SEE: Foner, Philip S. 1947. The Labor
Movement in the United States: From Colonial Times to the Founding of the
American Federation of Labor. International Publishers. New York. For the
court’s changing views SEE: : In re Debs 158
U.S. 564 -- compare with—National Labor Relations Board v. Jones & Laughlin Steel Corp. 301
U.S. 1. (1937)
[xliv] Truax v.
Corrigan. Duplex Printing Press Co. v.
Deering. Hitchman Coal & Coke Co. v Mitchell. According to a study: Clark,
Charles E. (1934) “corporate defendants dominated the diversity docket. They
were involved in 75 percent of all diversity cases and 87 percent of all
removed diversity actions.”
[xlv]There is
also a conception and influence of Weberian social science in the mix: the law
gained force not from right, but was right from force. See Holmes Dissent in
Black and Yellow: “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.” For more on the development of legal
realism. SEE Purcell, Edward. A. 1973. The
Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value. The
University Press of Kentucky. Lexington, KY. pp.74-93 For period-centric legal
realist theory SEE: Pound, Roscoe. 1922 An Introduction to the Philosophy of Law. Yale
University Press. New Haven, CT. --
Holmes, O.W. 1881. The Common Law. Boston. Little, Brown and Co.
[xlvi]
Purcell. 2000. Ch. 3
[xlvii] Purcell.
2000
[xlviii] Black and
White Taxicab Co. v. Brown and Yellow Taxicab Co.
[xlix] Southern
Pacific Co. v Jensen (1917)
[l] Black and
White Taxicab v. Brown and Yellow Taxicab Co.
[li] Greve,
Upside-Down 2011. Kindle Edition.
[lii] Purcell.
2000.
[liii] Brandeis,
L. Erie Railroad Co. v Tompkins. 304
U.S. 64 (1938)
[liv] John Hart
Ely, The Irrepressible Myth
of Erie, 87 HARV. L. REV. 693, 719 (1974) See also: Powell, H. J. "The Oldest Question of
Constitutional Law." Virginia
Law Review 79 (3): 633-689.
[lv] Greve,
Michael S. 2011. Ch. 10
[lvi] Greve,
Michael S. 2011. Chapter 10.
[lvii] Purcell.
2000 p.300 “arguably states as states”
[lviii] Ibid…
[lix] Gassaway,
Robert. R. 2012. The Upside-Down
Constitution by Michael S. Greve. Engage. V3. I1. http://www.fed-soc.org/publications/detail/the-upside-down-constitution-by-michael-s-greve
[lx] Madison,
James. The Federalist. 51
[lxi] Greve.
2011. Kindle Edition
[lxii] Younger
v. Harris 401 U.S. 37 (1971) Justice Black delivering the opinion of the court:
“It should never be forgotten that
this slogan, "Our Federalism," born in the early struggling days of [p45] our Union of States, occupies a highly
important place in our Nation's history and its future.” SEE ALSO: Melnick, R.
Shep. 2003. Deregulating the States: Federalism in the Rehnquist Court. Evolving Federalisms: The Intergovernmental Balance of Power in
America and Europe.
Syracuse.Campbell Public Affairs Institute. New York, NY. Pp.109–141.
SEE ALSO: Noonan, John T. 2002. Narrowing
the Nation’s Power: The Supreme Court Sides with the States.
University of California Press. Berkey, CA.
[lxiii] Purcell Jr., Edward A. 2000. Brandeis and the progressive
constitution: Erie, the judicial power, and the politics of the federal courts
in twentieth-century america. New Haven, CT: Yale University Press.
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