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18 Am. U. L. Rev. 316 (1968-1969)
In Praise of Joseph Story, Swift v. Tyson and the True National Common Law

handle is hein.journals/aulr18 and id is 326 raw text is: IN PRAISE OF JOSEPH STORY, SWIFT V. TYSON AND THE TRUE NATIONAL COMMON LAW Arthur John Keeffe* On January 16, 1964, at the House and Library of the Association of the Bar of the City of New York, Henry J. Friendly, my classmate at Elmira Free Academy (for whom I wrote my first column when he was Editor-in-Chief of our school paper The Vindex) delivered the 21st Annual Benjamin N. Cardozo Lecture, entitled: In Praise ol' Erie-and of the New Federal common Law.' Judge Friendly was once law clerk to Mr. Justice Brandeis and since everything Henry does, is well done, you can be sure that the Justice could not have had a more able lawyer to attempt a justification of his decision in Erie v. Tompkins' even though I regard it as the worst by the Supreme Court in this Century, ranking with Dred Scott in the last. At the outset of his lecture, Judge Friendly paid his disrespects to my often printed contention that Erie v. Tompkins represents the triumph of the Harvard Law School Party Line of Gray, Holmes, Warren, Frankfurter and Brandeis over their fellow Harvard graduate Mr. Justice Joseph Story and his decision in Swift v. Tyson.3 In a footnote Henry says that I remind him of Davy Crockett's fears anent 'the big college or university' at Cambridge! and he refers his readers to Hofstadler, Anti-Intellectualism in American Life. I probably do. I went to that cow college in Ithaca, New York in Arts and Law, called Cornell. Hugo Black's attitude towards Swi/t v. Tyson comes from quite a different background. As a lawyer in Alabama, Justice Black would find himself in federal court and it would not follow the Alabama law. This caused him (he will tell you) to lose cases in the federal courts, he would have won in the Alabama courts. To this day, he resents it. I do not question that there were abuses of the Swift v. Tyson * Professor of Law, Catholic University of America; Columnist, The American Bar Association Journal. I. H. Friendly, In Praise oJ Erie--and oJ the New Federal C'onton Law, 19 RECORD OF N.Y.C.B.A. 64 (1964). 2. 304 U.S. 64 (1938). 3. 41 U.S. (16 Pet.) I (1842).

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