In my last post, I noted that there has been a growing acceptance of the general common law among originalists. One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.
Let me explore a number of cases where the common law has been recognized as legitimate by some originalists. Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction. The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.
But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law. Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law. He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.” It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.