Article by William R. Casto
Legal positivism has been one of the more influential ideas in the history of American law. The general acceptance of positivism in this century virtually dictated the overruling of Swift v. Tyson and the creation of the Erie doctrine in 1938. Under Swift and before Erie R.R. v. Tompkins, judges were considered the living oracles of a preexisting natural law. Erie, however, signaled an intellectual revolution that pictured judges as lawmakers in a relativistic legal world. This essay is about the nature of this shift in ideology and what it suggests more broadly about how constitutional law is made.
The most striking aspect of the Erie doctrine is its sudden, dramatic acceptance by the Supreme Court. In the late nineteenth century, the Field brothers, David and Stephen, launched devastating positivist attacks on Swift, and their self-evident criticism was vigorously reiterated by Professor Gray, Justice Holmes, and others. But neither Holmes, nor Gray, nor the Fields lived to see Swift dethroned. A solid majority of the Court cleaved to Swift as late as 1928. Then in 1938 an even greater majority in Erie rejected the Swift doctrine as patently wrong.
What happened between 1928 and 1938? No new arguments were developed. Neither the petitioner nor the respondent in Erie addressed Swift's validity until the issue was forced upon them by Justice Brandeis during oral argument. Even then, counsel for petitioner initially responded that he ‘could not refrain from expressing his view that the doctrine of Swift was unfortunate in its consequences but that nevertheless, its acceptance by so many courts for so many years precluded him from suggesting that the doctrine be overruled.’ But the Court forced the issue and devoted most of the oral argument to a general discussion of Swift. A few days later the Justices conferred in private, and all but two voted to overrule. The opinion was then assigned to Justice Brandeis who did little more than repeat the longstanding positivist critique.
Holmes, Gray, and the Field brothers were great men in American law, but the force and logic of their capable advocacy cannot explain the eventual decision in Erie. This essay argues that a better understanding of Erie can be attained by drawing upon some of Thomas Kuhn's insights into the structure of scientific revolutions. Kuhn wrote that all changes in scientific knowledge cannot be explained solely in terms of incremental advances. Most scientific work—what he calls normal science—is based upon fundamental paradigms whose validity is assumed as a matter of faith by the scientific community. Occasionally, however, the scientific community loses faith in the utility of a particular paradigm for the solution of scientific problems. The resulting crisis sets the stage for a paradigm shift in which a new and contrary paradigm supplants the old one. Because conflicting paradigms almost by definition are internally consistent and yet incommensurable with each other, their comparative value is difficult to assess through logical proof. Kuhn concludes that scientific revolutions are, to a significant degree, functions of nonrational faith within the scientific community.
Kuhn's model of revolution has been criticized. For example, some have complained that Kuhn's community of scientists is difficult to define in a noncircular manner and that the mechanisms by which the community's prevalent faith is enforced are not readily apparent. Critics also have drawn back in horror from Kuhn's suggestion that the validity of fundamental scientific doctrine is relative and based to a significant degree upon subjective considerations. Many of these objections lose their significance, however, when Kuhn's insights are applied to Supreme Court decision making. Charges of relativism and irrationality seem naive when the context is changed to a discipline like lawmaking in which irrationality and relativism are embraced. Furthermore, the pertinent community of ‘scientists' is easily defined in terms of actual and potential membership of the Supreme Court. The enforcement mechanisms are equally obvious: the Court's power of review coupled with other judges' psychological subservience to the Supreme Court's pronouncements.
This essay begins with an account of how and why the American legal profession came to replace the oracular model of judicial decision making exemplified by Swift with the Erie doctrine's rationale of positivism. The oracular model pictured common-law judges as oracles who discovered preexisting metaphysical legal principles and declared the principles' applicability in particular cases. Under this view, the metaphysical principles were the law, and judicial precedents were merely evidence of the law. The oracular or declaratory model in the early nineteenth century and legal positivism in the present century are similar to Kuhn's scientific paradigms. The legal community has generally accepted each theory in its time as an article of faith. Although the theories are in direct conflict, each is internally consistent. Therefore, their comparative value cannot be assessed through logical proof. Instead, the rise of legal positivism and the consequent demise of Swift are more easily explicable in terms of coherence between legal theory and professional experience. The Swift and Erie doctrines were fashioned by elite members of the Supreme Court, and this essay is concerned with Supreme Court decision making. Therefore, the experience and faith of the professional elite will be emphasized to the virtual exclusion of other lawyers' beliefs.
The Erie decision provides a good laboratory for studying Supreme Court decision making because the case involved a comparatively simple conflict between two faiths—the oracular and the positivist visions of the common law. Emphasizing this coincidence is not intended to suggest that the Court's decision making generally or even frequently involves a simple conflict between polar faiths. The overruling of Swift v. Tyson does, however, reaffirm the significance of individual Justices' a priori faiths. Erie was a direct consequence of an underlying judicial faith in legal positivism. If this cold analytical credo can stoke the furnace of revolution, more emotionally evocative beliefs provide even greater impetus to radical change.
This essay concludes with some thoughts on the Supreme Court's role as a maker of constitutional law. In particular, the structure of the Erie revolution indicates that Supreme Court decision making is significantly constrained by predominant attitudes in the Justices Class—an elite interpretative community consisting of lawyers who might become Supreme Court Justices.
About the Author
William R. Casto. Professor of Law, Texas Tech University. B.A., 1970, J.D. 1973, University of Tennessee at Knoxville, J.S.D. 1983, Columbia University.
Citation
62 Tul. L. Rev. 907 (1988)