Swift and Erie: The Trials of an Ephemeral Landmark Case

Abstract

Like jazz improvisation, the meaning of Swift v. Tyson was elusive.1 Justice Joseph Story's 1842 opinion concerning an important commercial-law issue arose from a jury trial.2 When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'-rights proponents, the Supreme Court endorsed Story's commercial-law opinion unanimously.3 New members of the Court and the increasing number of federal lower-court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress.4 Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety-six-year-old precedent in Erie Railroad v. Tompkins (1938).5 The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie.6