In this Article, I argue that the spirit of Swift v. Tyson is alive today--and that it's a good thing too. (1) As it is usually understood, Swift depended on a nonpositivist theory of the common law that few currently share). (2) I will argue that Swift was in fact struggling with a question of state law that commonly arises today. This is the question of extra jurisdictional effect--that is, whether state authorities intend their legal rules to be used in other court systems.(3)
Extrajurisdictional effect is puzzling because, absent certification, the courts of the state whose rules are at issue have no occasion to discuss it. They are concerned with the rules they are obligated to follow, because that is what matters to the parties before them. What the courts of other jurisdictions should do is a question that those courts will face. As a result, extrajurisdictional effect is the legal equivalent of dark matter, which can be observed only through its gravitational effect upon other bodies. (4) Unless the question of extrajurisdictional effect is certified to the relevant state's supreme court, the only courts that will discuss it are those not in a position to provide authoritative answers. This gives a misty and jurisprudential aura to what is in fact a straightforward question of state law.
This Article has three Parts. I devote the first to showing that the conception of the general common law expressed in Swift v. Tyson was compatible with legal positivism. In the second, I argue that the heart of the disagreement between advocates of Swift and Erie was a difference of opinion about extrajurisdictional effect: in particular, whether a state's officials wanted the decisions of the state's courts concerning the common law to bind federal and sister state courts when adjudicating events occurring within the state's borders. What made the disagreement so intractable--and what made it appear as if it was a jurisprudential question to be resolved through a priori reasoning--was that it concerned dark matter. The courts of the state whose decisions were at issue never had occasion to settle the question. Had certification been possible, the disagreement could have been quickly resolved.
In the third Part, I argue that the problem of dark matter still arises and produces positions akin to Swift and Erie. One example concerns the law of choice of law. There is currently a debate about whether federal and sister state courts should respect a state's choice-of-law rules. Courts generally take a Swiftian approach to the question. The fact that a state supreme court would not apply the state's law to certain facts does not mean that federal or sister state courts cannot. But a number of scholars have argued that an Erie approach should be used. State supreme court decisions should be treated as authoritative concerning the territorial scope of the state's law.
Here too the debate has proved intractable because it is about dark matter. No state supreme court has ever had occasion to decide whether its choice-of-law rules have extrajurisdictional effect. The absence of authoritative decisions has made the debate appear as if it is a jurisprudential matter to be resolved by a priori reasoning. But a very simple solution has been ignored: certification of the question to the relevant state supreme court. I argue that the consequence of such certification would be a vindication of Swift over Erie.
As it is usually described, Swift v. Tyson depended upon a nonpositivist conception of the common law. (5) To get a clear view of whether this is in fact true, we need some understanding about what legal positivism and its competitors are.
Current philosophers of law generally identify legal positivism by means of two theses. According to the social fact thesis, the law of a jurisdiction is fundamentally a matter of social facts--usually concerning the attitudes and actions of officials within that jurisdiction. (6) According to the separability thesis, the content of the law need not overlap with morality, although it often does so as a contingent matter. (7)
A good example of legal positivism is the theory of law offered by H.L.A. Hart in The Concept of Law. (8) According to Hart, a norm, such as "do not drive over 25 mph," is the law if it satisfies the criteria for enforceability that have been accepted by a community of officials--judges, legislators, sheriffs, and the like. (9) For example, the norms identified in the Securities Exchange Act are law because they satisfy the criteria, such as promulgation in accordance with the United States Constitution, that American officials have accepted for identifying norms that may be backed up by their power. Hart calls this official practice of enforcing norms on the basis of accepted criteria a rule of recognition. (10) Hart's theory of law is positivist because the existence and content of a rule of recognition are matters of social fact, and the criteria in a rule of recognition can identify norms as enforceable even if they deviate from morality.
Positivism and its nonpositivist competitors are general theories of law--that is, they are accounts of what is essential to law wherever it occurs.(11) Just as it is essential to all bachelors that they are unmarried males, under Hart's theory it is essential to all laws that a rule of recognition identifies them as such. In this sense, Hart thinks that the law is constituted by social facts. If morality somehow disappeared, but official practices of norm enforcement continued, law would continue too. In contrast, some nonpositivists argue that social facts are necessary but not sufficient for law; moral or evaluative facts are needed as well. (12) If evaluative facts disappeared, so would law, even if official practices of norm enforcement remained. (13) Under a more extreme form of nonpositivism, social facts are not even necessary for law.(14)
Because it claims to be a theory of what is essential for law, positivism--if correct--is a necessary restriction on the law, beyond anyone's control. The fact that officials in a legal system are committed to a nonpositivist theory of law cannot make their law nonpositivist. All it means is that the officials are conceptually confused. They do not understand the law of their own jurisdiction. (15)
For a possible example of such conceptual confusion, consider Justice Field's opinion in Pennoyer v. Neff. (16) According to Field, the Oregon state court whose judgment against Neff was at issue in Pennoyer did not have adjudicative power because Neff had not been present in the state, through his person or property, at the initiation of the lawsuit. (17) Pennoyer is largely remembered for incorporating these requirements for personal jurisdiction into the Fourteenth Amendment Due Process Clause. (18) But this was dicta because the Oregon state court's judgment was issued two years before the Fourteenth Amendment was ratified. (19) And yet Justice Field still thought it was appropriate to decide whether the Oregon judgment was entitled to recognition in federal court on the basis of these requirements.
What law of personal jurisdiction was Field applying? We know it was not Oregon law, positivistically understood--that is, norms identified as enforceable by Oregon authorities. The assertion of personal jurisdiction at issue in Pennoyer would have satisfied Oregon state courts. (20) Was it federal law then? It could not, of course, have been federal constitutional law. Field was clear that the only relevant constitutional provision, the Fourteenth Amendment, was not yet binding on the Oregon court's actions. (21) But perhaps it was federal common law--that is, common law created by federal courts concerning when they should recognize the judgments of other court systems. So understood, however, Field should have concluded that the Oregon judgment was valid in the Oregon state court system. The judgment would have been unenforceable in federal court only. And yet he insisted that the requirements for personal jurisdiction were binding in Oregon state courts as well:
[I]f the court has no jurisdiction over the person of the defendant by reason of his nonresidence, and, consequently, no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him or his appearance, is coram nonjudice and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice,--it is difficult to see how the judgment can legitimately have any force within the State. (22) The law of personal jurisdiction as Field understood it appeared to be nonpositivist. It consisted of norms that were legally binding on Oregon courts in a manner that was not tied to social facts about Oregon--or, indeed, federal--officials.
If positivism is correct, Field was wrong. The norms of personal jurisdiction he spoke of did not have any legal force within the Oregon state court system. He was confusing the law with something else--probably morality--that did not depend upon social facts for its existence and scope. The law he was in fact applying was probably federal common law binding on only federal courts.
Notice, however, that a positivist need not condemn people as conceptually confused simply because they use the word "law" in a manner that is contrary to the positivist theory, for they may be choosing to use the word "law" in connection with something other than the law. Consider a theory of banks, according to which they are necessarily the shores of rivers. It need not follow from this theory that someone who says she put money in a "bank" is conceptually confused, for she might be using the word to speak of financial institutions, rather than the banks with which the theory is concerned. She would be conceptually confused only if she insisted that she was using the word "bank" in connection with the very same stuff that the...