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Erie #8



Why do Brandeis and Story interpret the Rules of Decision Act
differently?

Brandeis had the benefit of almost one hundred years of application of
the Swift doctrine.  He saw the pitfalls that that decision had
created.  Benefits expected to flow from the rule did not accrue - state
courts did not fall into line with federal interpretation of what the
law was or should be.  Brandeis realized that the Swift doctrine
encouraged forum shopping and resulted in unfairness.  Moreover,
Brandeis pointed out the fallacy of federal common law: "the [swift]
doctrine rests upon the assumption that there is a transcendental body
of law outside of any particular State but obligatory within it unless
and until changed by statute."