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Pace University

2007

Pace Law Faculty Publications

Civil Procedure

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The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg Jan 2007

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

Pace Law Faculty Publications

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 ...