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Why interpret sec. 34 differently?
The notes suggest that Brandeis was persuaded by Charles Warren's discovery
of an earlier draft of the Sec as well as his interpretation that "their
unwritten common law still in use" was considered part of the term "states
"laws" to mean statute and judge made law. AS the notes point out the
argument could also be made that the language was left out because the
legislature intended for it NOT to apply to judge made law. I think that
Brandeis was already in a position (after 98 years of watching the expansion
of Swift) to know that the unification that was sought would never be
achieved and therefore chose the interpretation of Sec 34 that best suited
was he felt would correct the problem.