The Storrs Lectures: The Age of Anxiety

Abstract

ions faded, the unitary theories disappeared, the range of liability became wider and wider and plaintiffs' damages flourished like the green bay tree.29 The rebirth of judicial activism has gone hand in hand with a rebirth of the federalizing or nationalizing principle. In 1938 a unanimous Supreme Court declared that the federal law doctrine of Swift v. Tyson30 was, and always had been, unconstitutional.31 The Swift v. Tyson device, which had over a long period been of great service, had, for reasons which have been discussed, ceased to work in this century. No doubt the only sensible course was to get rid of it, as the Supreme Court did. But, having scrapped the machine that no longer worked, the Court immediately set about providing a substitute that would work. Even at the time the Erie case was decided, a prescient observer might have commented that the case's apparent meaning could hardly be taken as its true meaning. It was unlikely to the point of impossibility that control over the development of the substantive law was to be returned to the several states just at the time when the powers and presence of the federal government in all areas of our national life had reached a point previously unknown in our history. And that proposition, which was clearly enough true in the years preceding World War II, had long since passed the point of no return by the time we had come to the end of the war period. The post-Erie federalization of the law was not established all at once by the fiat of a single great case. Rather, the federalizing principle expressed itself in a variety of ways as the courts reacted to the 29. See generally G. GILMORE, THE DEATH OF CONTRACT (1974); RESTATEMENT (SECOND) OF CONTRACTS ? 90, comments d, e, at 217-19 (1973). 30. 41 U.S. (16 Pet.) 1 (1842). 31. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).