The Supreme Court 'Pulled a Brodie': Swift and Erie in a Commercial Law Perspective

48 Pages Posted: 4 Jan 2024 Last revised: 11 Apr 2024

See all articles by Todd J. Zywicki

Todd J. Zywicki

George Mason University - Antonin Scalia Law School; PERC - Property and Environment Research Center

Date Written: January 4, 2024

Abstract

Erie Railroad v. Tompkins is a cornerstone of modern American law. Erie overturned Swift v. Tyson, a case that had stood for nearly a century with minimal objection. Swift involved the negotiability of commercial paper and the holding of the case, that in disputes heard in federal courts under diversity jurisdiction, the court should use traditional common law methods to resolve the case rather than feeling bound by the authoritative pronouncements of a state court.

Correspondence between Harvard Law School’s Lon Fuller and Yale’s Arthur Corbin—arguably the two greatest Contracts Law professors of the mid-Twentieth Century—reveals widespread ridicule and dismay among commercial lawyers and scholars following Erie. Fuller quotes the great Harvard Constitutional Law scholar as saying the Supreme Court “pulled a brodie” in Erie. This article reviews Erie from the perspective of commercial law, rather than the public law commentary that has dominated discussion of the Erie doctrine since its birth, seeking to understand the depth of contempt for Erie among commercial lawyers in terms of its consequences, reasoning, and jurisprudential approach.

Keywords: Arthur Corbin, Lon Fuller, F.A. Hayek, legal positivism, Swift, Erie

JEL Classification: K12, K15, N12, O43

Suggested Citation

Zywicki, Todd J., The Supreme Court 'Pulled a Brodie': Swift and Erie in a Commercial Law Perspective (January 4, 2024). NYU Journal of Law & Liberty, Vol. 17, pp. 296–342, 2024, George Mason Legal Studies Research Paper No. LS 24-02, Available at SSRN: https://ssrn.com/abstract=4684139 or http://dx.doi.org/10.2139/ssrn.4684139

Todd J. Zywicki (Contact Author)

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