Untethered Norms After Erie Railroad Co. v. Tompkins: Positivism, International Law, and the Return of the "Brooding Omnipresence"

TABLE OF CONTENTS INTRODUCTION I. ERIE'S JURISPRUDENCE: THE POSITIVE SIDE A. General Common Law: Some Background 1. General Common Law: Position 2. General Common Law: Provenance 3. Untethered Norms, Popular Participation, and Legitimacy II. ERIE'S JURISPRUDENCE: THE CRITICAL SIDE A. Unavoidable Reliance on Untethered Norms B. Customary International Law 1. Customary International Law: What It Is 2. Customary International Law and Erie's Nonexistence Claim 3. Possible Distinctions III. CHOICE OF LAW AND UNTETHERED NORMS: AN EXPERIMENT A. Why Choice of Law? B. Choice of Law: Basic Problem, Urgent Needs CONCLUSION INTRODUCTION Positivism, in the American legal system, is the jurisprudence of choice. Law is not some metaphysical creation arising by spontaneous generation out of logical or philosophical first principles, which human judges then decipher. (1) Positivism tethers a legal norm securely to the entity that created it, with that same official entity calling the shots when the time comes to apply, interpret, alter, or overrule it. Untethered norms are dismissed as mere "brooding omnipresences." (2) The case most associated with the Supreme Court's endorsement of positivism is Erie Railroad Co. v. Tompkins. (3) In an opinion by Justice Brandeis that dabbled in American history, (4) policy, (5) and jurisprudence (6)--in addition to the usual constitutional law (7) and statutory construction (8)--the positivists on the Court held that federal judges should cease their independent determination of "general common law" and follow in the footsteps of their state court colleagues sitting a block away. (9) But the case for the positivist perspective is not as clear-cut as it first appears. (10) The rejection of "untethered norms" is selective, with positivists relying on them whenever they are needed to prove the positivists' point. (11) Moreover, it is unclear why general common law has been singled out for pariah status when other areas of law, similarly untethered, have not been written off as well. One of these other areas of law is customary international law, which, although nearly as vulnerable to the positivist critique as general common law, is rarely challenged. (12) Perhaps other subject areas, such as conflict of laws--a subject with historical roots deep in general common law--should enjoy comparable indulgence. (13) As this Article will show, there are good arguments in favor of this proposal. (14) Erie's jurisprudence leaves many questions unanswered. And the fact that Erie got the answer to the basic legal issue right--on constitutional and statutory grounds--is not a reason to ignore these questions. Erie began the problem, and that is where we have to begin the search for a solution. I. ERIE'S JURISPRUDENCE: THE POSITIVE SIDE Erie Railroad Co. v. Tompkins is not a case that needs much introduction; however, it has many different strands and a word or two is needed to identify which ones are relevant. Our story focuses on Erie's jurisprudential features, not its statutory or constitutional ones, and in particular on Erie's claim that general common law does not exist. (15) A. General Common Law: Some Background Erie, as we all know, was based in large part on a reinterpretation of section 34 of the Judiciary Act of 1789, commonly known as the Rules of Decision Act. (16) That Act stated that "[t]he laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." (17) The central question in Erie was whether the scope of the phrase "the laws of the several states" included only statutes, or if it also encompassed state decisional law. …