The Supreme Court “Pulled a Brodie”: Swift and Erie in a Commercial Law Perspective
Erie Railroad v. Tompkins is a cornerstone of modern American law. Erie overturned Swift v. Tyson, a case that had stood for nearly a century with minimal objection. Swift involved the negotiability of commercial paper and the case held that in disputes heard in federal courts under diversity jurisdiction the court should use traditional common law methods to resolve the case rather than feeling bound by the state court decisions.
Correspondence between Harvard Law School’s Lon Fuller and Yale’s Arthur Corbin—arguably the two greatest Contracts Law professors of the mid-Twentieth Century—reveals widespread ridicule and dismay among commercial lawyers and scholars following Erie. In a letter to Corbin, Fuller quote the great Harvard Constitutional Law scholar Reed Powell as saying the Supreme Court “pulled a brodie” in Erie. This article reviews Erie from the perspective of commercial law, rather than the public law commentary that has dominated discussion of the Erie doctrine since its birth, seeking to understand the depth of contempt for Erie among commercial lawyers in terms of its consequences, reasoning, and jurisprudential approach.
