53 Nw. U. L. Rev. 427 (1958-1959)
Erie Doctrine and the Constitution

handle is hein.journals/illlr53 and id is 437 raw text is: Northwestern University
VOLUME 53                SEPTEMBER-OCTOBER                  NUMBER 4
The Erie Doctrine and the Constitution*
By Alfred Hill**
W HEN, in Erie R.R. v. Tompkins,' the Supreme Court over-
turned the.century-old rule of Swift v. Tyson,2 it indicated
th-at it would never have taken such a drastic step but for the most
compelling of constitutional reasons. In subsequent years the con-
stitutional basis of Erie has been widely regarded as dictum, and
rather dubious dictum at best.3 In this connection it has seemed sig-
nificant that in its numerous decisions amplifying and refining the
so-called Erie doctrine the Court seems sedulously to have avoided
any suggestion that the doctrine has any constitutional basis-
until the decision two years ago in Bernhardt v. Polygraphic Co.,4
where a considered dictum revived the constitutional issue more
strongly than ever. The effect of the Bernhardt case has been to
raise doubts concerning the validity of many federal procedural
statutes, and to renew doubts about the validity of many of the
Federal Rules of Civil Procedure. The resulting situation in the
inferior federal courts is one of extraordinary confusion.
The view developed in this paper is that Erie does indeed have
a constitutional basis-in the sense that our system       of federalism
is rooted in the Constitution, and that the failure of a federal
*This article is the first of two installments. The second will appear in the No-
vember-December issue of this Review. The writer is indebted to his colleague,
Professor Harry B. Reese, for constructive criticism, and to John J. Dilenschneider
of the third year class at the Northwestern University School of Law for research
**Professor of Law, Northwestern Univ.; B.S. in S.S., College of the City of
New York, 1937; LL.B., Brooklyn Law School, 1941; S.J.D., Harvard Univ., 1957.
1. 304 U.S. 64 (1938).
2. 41 U.S. (16 Pet.) 1 (1842).
3. See Clark, State Law in the Federal Courts: The Brooding Omnipresence of
Erie v. Tompkins, 55 YALE L.J. 267, 273 (1946); Keeffe, Gilhooley, Bailey & Day.
Weary Erie, 34 CORNELL L.Q. 494, 497-98, 524 (1949); Currie, Change of Venue
and the Conflict of Laws, 22 U. Cm. L. REV. 405, 468-69 (1955), and authorities
cited in notes 88-90 infra. Also see Kurland, Mr. Justice Frankfurter, The Supreme
Court and the Erie Doctrine in Diversity Cases, 67 YALE L.JT. 187, 204 (1957).
616-17, 634 (1953); Bowman, The Unconstitutionality of the Rule of Swift v.
Tyson, 18 B.U.L. REV. 659 (1938); Wechsler, Federal Jurisdiction and the Revision
of the Judicial Code, 13 LAw & CONTEMP. PaoB. 216, 239 nn. 119, 121 (1948) ; Hill,
The Erie Doctrine in Bankruptcy, 66 HARV. L. REV. 1013, 1024-35 (1953); Hart,
The Relations Between State and Federal Law, 54 CoLum. L. REV. 489, 509-510
4. 350 U.S. 198 (1956).

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