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[[Vo1l..50:: 762 of the specific litigants and because they may be strongly persuasive in
774 THE YALE LAW JOURNAL
subsequent litigated cases. The phrase is "may be strongly persuasive."
subsequent litigated cases. The phrase is "may be strongly persuasive."
No court has ever had more reason to know the truth of this than
No court has ever had more reason to know the truth of this than the
present United States Supreme Court. It has for itself weighed present United States Supreme Court. It has for itself weighed the
"sanctity" of precedent, determined when the doctrine "stare "sanctity" of precedent, determined when the doctrine "stare decisis"
should be honored only in its breach, and constructed new doctrine on the
basis of "all available data." As the Court itself says, the rule of law basis of "all available data." As the Court itself says, the rule of law as
applied by a court "is a datum . . . which is not to be disregarded . . . applied by a court "is a datum . . . which is not to be disregarded . . .
unless. .... " unless. . . . "
The doctrine laid down by Story in Swift v. Tyson was merely The doctrine laid down by Story in Swift v. Tyson was merely a
"datum." It was very frequently openly criticized; it was sometimes "datum." It was very frequently openly criticized; it was sometimes
consciously or unconsciously disregarded; it was finally excoriated consciously or unconsciously disregarded; it was finally excoriated as
both erroneous and "unconstitutional." The most surprising thing
both erroneous and "unconstitutional." The most surprising thing about
it is that such a "datum" should have had its troubled influence for as it is that such a "datum" should have had its troubled influence for as
long as a hundred years. It may yet find a court to do it honor. There long as a hundred years. It may yet find a court to do it honor. There
it stands, in the 16th volume of Peters, as long as a single law library it stands, in the 16th volume of Peters, as long as a single law library
escapes destruction by the Hun and the Vandal. It is still a "datum"; escapes destruction by the Hun and the Vandal. It is still a "datum";
but it is a dated datum. So also are the similar data of more recent
but it is a dated datum. So also are the similar data of more recent date.
Where, because of diversity of citizenship, a party is forced into Where, because of diversity of citizenship, a party is forced into a
federal court, it is reasonable to hold that his rights should be determined federal court, it is reasonable to hold that his rights should be determined
in accordance with the same system of law as would have applied had the in accordance with the same system of law as would have applied had the
case been in a state court. This seems to have been the chief purpose case been in a state court. This seems to have been the chief purpose
behind the decision in Erie Railroadv. Tompkins. The overruled doctrine behind the decision in Erie Railroad v. Tompkins. The overruled doctrine
in Swift v. Tyson has been thought to assert that a federal system
in Swift v. Tyson has been thol,tght to assert that a federal system of
common law, differing from that of a state, might be applied by common law, differing from that of a state, might be applied by the
federal court even though it knew that a different result would be reached federal court even though it knew that a different result would be reached
under the applicable state system of common law. This well deserved to under the applicable state system of common law. This well deserved to
be overruled. It asserted that the substantive law of the forum, as
be overruled. It asserted that the substantive law of the forum, as well
as its procedure, determines the rights of the litigants, a doctrine that is as its procedure, determines the rights of the litigants, a doctrine that is
quite inconsistent with generally accepted theory. quite inconsistent with generally accepted theory.
It follows that the court of the forum should use the very same juristic It follows that the court of the forum should use the very same juristic
data in determining the rights of the litigants, whether the forum be data in determining the rights of the litigants, whether the forum be a
federal court or a state court. The Supreme Court has rightly
federal court or a state court. The Supreme Court has rightly held that
the rights of the litigant should not depend upon the accident of diversity the rights of the litigant should not depend upon the accident of diversity
of citizenship. Therefore, when the forum is a federal court, that court of citizenship. Therefore, when the forum is a federal court, that court
must determine the applicable law by recourse to all the juristic data that must determine the applicable law by recourse to all the juristic data that
are available to the state court. If the federal judge is required to
are available to the state court. If the federal judge is required to dis-
regard some of those available data, the litigant is not getting the same regard some of those available data, the litigant is not getting the same
justice that he would get if the forum were a court of the state whose justice that he would get if the forum were a court of the state whose
system of law is applicable; his rights, by reason of this limitation, will system of law is applicable; his rights, by reason of this limitation, will
vary with the forum and will again depend upon the accident of diversity vary with the forum and will again depend upon the accident of diversity
of citizenship. of citizenship.
This is not an argument against respect for precedent. Federal and This is not an argument against respect for precedent. Federal and
state judges should give exactly the same degree of respect to precedent; state judges should give exactly the same degree of respect to precedent;
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dis-