Thomas A. Smith, University of San Diego School of Law, has posted a reconsideration of Eire Railroad Co. v. Tompkins, entitled, Overruled from the Chair: A Study in Umbesetzung
This Article reads Erie Railroad Co. v. Tompkins (1938) not as the correction of a century-old error but as a conquest, and it borrows from Hans Blumenberg the concept of Umbesetzung, or reoccupation, to describe how the conquest was carried out. The classical order that Swift v. Tyson had restated, in which courts were understood to find a general law they had not made rather than to enact the law of a sovereign, was not moribund in 1938. It was alive, with a pedigree older than the Republic, and it would outlive its own obituary by the better part of a century. Erie did not refute that order; it redescribed it, adopting the delegitimating premise Holmes had pressed across three failed dissents, that law must be traceable to an identifiable sovereign author, and treating that premise as though the Constitution had supplied it. The Court then reached, sua sponte and past a narrower statutory ground a concurring Justice had shown to be sufficient, for a constitutional holding whose operative language it borrowed verbatim from Holmes’s own dissent. The result was a killing performed with the grammar of an autopsy, an overruling conducted from a chair its occupant had not vacated. The Article traces the emptying of the classical position across Holmes’s dissents and its formal occupation in Brandeis’s opinion and then turns to the modern general-law revival, which recovers the found-law form while leaving the classical substance where the conquest left it. It closes on the irony that the man who completed positivism’s victory was not a positivist but a moralist, evidence that a method has truly won when even its opponents must speak its idiom.
--Dan Ernst
