Before the Jurisprudential Turn: Corbin and the Mid-Century Opposition to Erie


This Article is structured as follows. Part I documents the jurisprudential turn in understanding Erie by analyzing some of Holmes’s famous dissents invoked in the opinion. It argues that Holmes’s epigrams about the nature of law in these dissents are deceptive: they either wrongly attribute to the majority jurisprudential views it need not hold or take a jurisprudential position unnecessary to the dissent’s view. Either way, Holmes’s legal positivism is irrelevant to his own dissents. Parts II-V together make the historical case for viewing Corbin as a legal positivist who objected to Erie’s result constitutional and practical grounds. Part II identifies a precise and plausible notion of legal positivism, and finds Corbin’s compact, but repeated, statements about law to be positivist. Part III describes and distinguishes Corbin’s practical and constitutional objections to Erie’s result. Part IV shows, contrary to the predominant view of his position, that Corbin’s objection to Erie is not only based on what he took to be its practical consequences in requiring federal court deference to state court determinations of state law. Corbin’s objection is more serious, based on vaguely specified constitutional constraints controlling the exercise of judicial power by federal courts. Part V speculates about the precise constitutional basis of Corbin’s opposition to Erie. A conclusion (Part VI) describes the relevance of Corbin’s example for the historical case against the jurisprudential turn in understanding Erie.


Erie Railroad v. Tompkins 304 U.S. 64 (1938), Federalism, Judicial review, Legal positivism, Preemption (Legislative power), United States, Corbin, Arthur Linton



Steven Walt (University of Virginia)



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