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The article "General Law in Federal Court" The article "General Law in Federal Court" (2013) by Anthony J. Bellia Jr. and Bradford R. Clark presents a historical and constitutional reassessment of the Supreme Court’s decisions in Swift v. Tyson (1842) and Erie Railroad Co. v. Tompkins (1938). The authors challenge the conventional legal narrative that Erie categorically banished "general common law" from federal courts to correct an unconstitutional power grab by federal judges. Instead, they argue that the two cases are consistent when understood through the historical distinction between "general law" (universal rules like the Law of Nations) and "local law" (state-specific rules). The article contends that at the time of Swift, applying general commercial law did not violate the Constitution because states applied these same universal rules. It asserts that Erie was only necessary because states later abandoned general law for local statutes, while federal courts improperly expanded the scope of general law into local matters. Ultimately, the authors conclude that Erie prohibits federal courts from disregarding state law on matters within state authority but does not prevent the application of general law in areas beyond state authority, such as foreign relations.
Key Points, Topics, and Headings
Topics and Headings
The Distinction Between General and Local Law: Defining the historical difference between universal customs and state-specific rules.
The Swift v. Tyson Context: Why the 1842 decision was constitutional at the time it was decided.
The Breakdown of the Distinction: How states localized laws and federal courts generalized them.
The Constitutional Basis of Erie: The role of the Supremacy Clause and federalism.
General Law After Erie: Where general law still applies (e.g., foreign relations, admiralty).
Key Points
General Law vs. Local Law: General law (e.g., Law Merchant, Law of Nations) concerns matters of interest to multiple sovereigns, while local law concerns matters specific to one state (e.g., real estate).
The "Brooding Omnipresence" Myth: The authors argue that the characterization of Swift as creating a "brooding omnipresence" of federal law is a misunderstanding. Swift was about applying universal commercial rules that states also used.
The Supremacy Clause: The Clause dictates that state judges must follow federal law. The negative implication is that federal courts must follow state law in the absence of a supreme federal mandate.
Political Safeguards: Federal lawmaking involves the Senate (representing states), but federal courts do not represent states. Therefore, federal courts cannot make "general law" that overrides valid state statutes.
The Erie Correction: Erie was necessary to stop federal courts from ignoring valid state laws that had replaced general commercial rules.
Remaining General Law: Erie did not kill general law entirely. It still applies in areas where states have no authority, such as disputes between nations or acts of state.
Discussion Questions
Why does the author argue that Swift v. Tyson was constitutional when it was decided, even though it was later overruled?
What is the difference between "general law" and "federal common law"?
How does the Supremacy Clause act as a restriction on federal judicial power in diversity cases?
In what specific areas does the author suggest general law can still be applied by federal courts today?
Easy Explanation
The Problem:
Most law students learn that the Supreme Court made a huge mistake in 1842 (Swift v. Tyson) by letting federal judges make up their own "general laws" instead of following state laws. Then, in 1938, the Court fixed this mistake in Erie by saying, "There is no federal general common law; you must follow state law."
The New Argument:
The authors of this paper say that story is wrong. They explain that in 1842, there was such a thing as "General Law"—a set of unwritten business rules used by all countries (the "Law Merchant"). Back then, states used these rules, too. So, when federal judges used them, they weren't ignoring the states; they were using the same rules the states were using.
What Changed:
Over time, states started writing their own specific laws to replace these "General Rules." But federal judges kept using the old General Rules, even where the state had written a new, specific law. This caused unfairness—you would get a different result in federal court than in state court for the same case.
The Solution:
Erie stepped in to stop this unfairness. It told federal courts: "If the state has a law (written or unwritten), you must follow it." However, the authors argue that Erie didn't kill "General Law" forever. It just said you can't use it to beat a state in its own territory. For things states don't control—like dealing with foreign countries—federal courts can still use General Law.
Presentation Outline
Slide 1: Title & Introduction
Title: Reinterpreting Erie and Swift
Source: General Law in Federal Court (Bellia & Clark, 2013)
Objective: Understanding the historical relationship between federal courts and general law.
Slide 2: The Conventional Narrative vs. Reality
Conventional View: Swift was bad (judges making laws); Erie was good (judges following states).
Author's View: Both decisions make sense if you understand the history of "General Law."
Slide 3: Defining the Terms
Local Law: Rules specific to a state (e.g., property titles, state statutes).
General Law: Universal rules shared by nations (e.g., Law Merchant, customs of commerce).
Key Concept: At the Founding, states adopted General Law as part of their own common law.
Slide 4: The Swift Decision (1842)
Context: Commercial disputes often involved the "Law Merchant."
Ruling: Federal courts could exercise independent judgment to find this General Law.
Why it was Valid: States didn't "own" General Law; they just applied it. Federal courts did the same.
Slide 5: The Breakdown (Why Erie Happened)
State Action: States began replacing General Law with specific local statutes.
Federal Action: Federal courts kept applying General Law, even to local issues like torts.
The Conflict: Federal courts were now ignoring valid state laws.
Slide 6: The Constitutional Fix (Erie)
The Holding: Federal courts must follow state law rules of decision.
The Reason: The Supremacy Clause allows federal law to trump state law, but it doesn't allow federal judges to invent laws to trump state law. That bypasses the "political safeguards of federalism."
Slide 7: Does General Law Still Exist?
Yes. Erie only applies to matters within state authority.
Where it applies:
Foreign Relations (Act of State Doctrine).
Admiralty/Maritime Law.
Areas where the Constitution grants exclusive power to the Federal Government.
Slide 8: Conclusion
Summary: Swift and Erie are not opposites; they are applications of the same principle: respect for state sovereignty.
Takeaway: Federal courts cannot use "General Law" to displace valid state law, but they may use it where states have no power to... |