Document Type



This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in the terms the Supreme Court has used, from Erie to Gasperini v. Center for Humanities, Inc., the Court's most recent full-blown Erie effort. Part IV proposes a different way of doing Erie analysis, one that is consistent with the Court's results in Erie cases but more coherent and easier to understand. Part IV also examines the approach to the Erie doctrine that some well-known scholars have adopted. It argues that the Erie doctrine concerns a choice-of-law problem that is subject to successful analysis using a governmental-interest approach of the type now common in conflict of laws. To be sure, the balancing of interests differs in Erie situations because the Supremacy Clause is a constitutional thumb on the scales, but one that ends up making the inquiry easier, not harder.