General Law in Federal Court
Bellia, Anthony J., Jr., Clark, Bradford R., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. THE DISTINCTION BETWEEN GENERAL AND LOCAL LAW A. Local Law and General Law B. Judicial Adherence to the Distinction 1. Local Law in Federal Court a. State Statutes b. Unwritten Local Law 2. General Commercial Law in Federal Court C. Swift v. Tyson in Historical Context II. THE BREAKDOWN OF GENERAL AND LOCAL LAW A. State Efforts to Localize General Law B. Federal Judicial Efforts to Generalize Local Law C. Erie and the Supremacy Clause III. GENERAL LAW IN FEDERAL COURT AFTER ERIE A. Matters Within State Authority B. Matters Beyond State Authority 1. Territorial Integrity and Absolute Equality of States 2. Foreign Relations Powers of the Political Branches a. The Act of State Doctrine b. Head of State Immunity CONCLUSION
Conventional wisdom maintains that the Supreme Court banished general law from federal court in 1938. In Erie Railroad Co. v. Tompkins, the Court famously declared that "[t]here is no federal general common law." (1) In so doing, the Court overruled its 1842 decision in Swift v. Tyson. (2) Modern accounts start from the premise that Swift and Erie represent irreconcilable conceptions of federal judicial power, but this premise is mistaken. According to these accounts, Swift viewed the common law as a "brooding omnipresence," rather than a sovereign act, and authorized federal courts to disregard state common law in favor of general common law of their own choosing. (3) Erie, by contrast, constrained such judicial lawmaking by interpreting the Constitution to banish general law from federal courts in the face of contrary state law.(4) Because the Erie Court concluded that "the unconstitutionality of the course pursued" was "clear," it felt compelled to overrule Swift and abandon a doctrine that had been "widely applied throughout nearly a century." (5) The effect of this decision, it is said, was to prohibit federal courts from applying general law unless it qualifies as state law or, more controversially, as "federal common law." (6)
Although we agree that Erie rests on constitutional grounds, it does not follow that Swift was unconstitutional when it was decided or that the Constitution prohibits federal courts from applying general law under any circumstances. To the contrary, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in its full historical context. In our view, Erie is best read as recognizing that federal courts must apply state law unless required to disregard such law by the Supremacy Clause. At the time Swift was decided, state common law largely incorporated general commercial law. General commercial law, or the law merchant, referred to shared commercial customs and practices among nations. General law was distinct from local law, which referred to law that applied only within the territorial jurisdiction of a particular sovereign. At the time Swift was decided, a federal court's application of general commercial law did not implicate the Supremacy Clause because federal and state courts alike did not understand general commercial law to be the law of a particular state. Accordingly, when federal courts applied general commercial law, they did not displace state law, but rather acted in accord with a state's choice to apply general commercial law.
The relevant distinction at the time was not between general law and state law, but between two kinds of state law: general law and local law. General law was "an identifiable body of rules and customs developed and refined by a variety of nations over hundreds and, in some cases, thousands of years." (7) Such law addressed matters of concern to more than one sovereign, and no single sovereign had the ability to fix its meaning. Thus, nations and states used independent judgment to ascertain the …
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Publication information: Article title: General Law in Federal Court. Contributors: Bellia, Anthony J., Jr. - Author, Clark, Bradford R. - Author. Journal title: William and Mary Law Review. Volume: 54. Issue: 3 Publication date: February 2013. Page number: 655+. © 1999 College of William and Mary, Marshall Wythe School of Law. COPYRIGHT 2013 Gale Group.
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