Curtis Bradley, University of Chicago Law School, and Jack Goldsmith, Harvard Law School, have posted General Law Revivalism and the Problem of 1938:
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.
--Dan Ernst
