Jack Landman Goldsmith (Harvard Law School) & Curtis Bradley (University of Chicago Law School) have posted General Law Revivalism and the Problem of 1938 (59 pages) on SSRN. Here is the abstract:
From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to resolve a wide range of legal issues, including issues relating to commercial law, torts, international law, conflict of laws, equity, and procedure. This general law regime became politically fraught and difficult to administer, and the Supreme Court finally repudiated it in Erie, declaring that “there is no federal general common law” and requiring the federal courts to ground all rules in either federal or state law. Erie and its progeny created what this Article terms the “Erie algorithm,” which requires every pre-Erie doctrine to be reconceptualized through nonoriginalist principles relating to the proper sources of law and the nature and scope of federal judicial power. This algorithm undergirds nearly every corner of contemporary federal courts doctrine. Despite their willingness to rethink other major structural constitutional law precedents, the originalists on the Supreme Court have accepted–and, indeed, embraced–the Erie algorithm and incorporated it throughout modern public law. By contrast, a number of scholars in recent years–primarily but not exclusively originalists–have sought to revive the pre-Erie general law. “General law revivalism,” this Article argues, overlooks how dysfunctional the general law regime had become before Erie and fails to appreciate the incompatibility of that regime with the post-Erie constitutional order. In addition, those who suggest jettisoning Erie have not made the case for absorbing the massive system costs that such an effort would generate. The Article concludes that the Erie transformation leaves many versions of originalism with “the problem of 1938”: the necessity of reconciling originalist commitments with a legal system fundamentally shaped by Erie’s non-originalist foundations.
UPDATE: At Legal Theory Blog, Larry Solum says: “An important paper. Highly recommended. Download it while it’s hot!”
FURTHER THOUGHTS: I don’t consider myself a general law revivalist, so the paper is not really aimed at me. But I resist its assumption that Erie is fundamentally nonoriginalist. Erie‘s core direction is that federal courts must apply state law in the absence of superior federal law. I think that is correct as an original matter. It is consistent with the 1789 Judiciary Act’s direction that federal courts use state law as a rule of decision where it applies. And I think the Judiciary Act was an implementation of the Constitution on this point — specifically, an implementation of a negative implication of the Article VI supremacy clause. The clause lists the sources of law that are “supreme Law of the Land” and thus must be the rules of decision in place of any competing state law. By negative implication, sources of law that are not listed in the supremacy clause are not supreme law of the law and thus cannot displace state law as rules of decision. (This argument is developed at greater length here, and specifically as to customary international law here.)
This is not a rejection of general law. Where there wasn’t any specific state law (that is, where states used general law instead of their own positive law), then federal courts could use general law as well. That was the point of the Supreme Court’s decision in Swift v. Tyson, which Erie purported to overturn. But Erie was wrong to say that Swift was wrong — rather, Swift was merely overtaken by events. By 1938, states didn’t much use general law anymore. So federal courts were obligated to use state law more broadly that they once were. (Bradford Clark has a series of articles developing this argument, which I find highly persuasive.)
Thus Erie may go too far (from an originalist perspective) in disparaging general law as a concept, but Erie has an originalist core that supports most of its modern applications. So in my view anyway, there is not so much tension between originalism and the post-Erie world.
Posted at 6:05 AM