Erie Doctrine and the Structure of Constitutional Revolutions

Abstract

Legal positivism has been one of the more influential ideas in the history of American law. The general acceptance of positivism in this century virtually dictated the overruling of Swift v. Tyson and the creation of the Erie doctrines in 1938. Under Swift and before Erie R.R. v. Tompkins, judges were considered the living oracles of a preexisting natural law. Erie, however, signaled an intellectual revolution that pictured judges as lawmakers in a relativistic legal world. This essay is about the nature of this shift in ideology and what it suggests more broadly about how constitutional law is made.