The Demise of Swift v. Tyson

Abstract

"IF I am right the fallacy has resulted in an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." Then Mr. Justice Holmes, with a characteristic and cryptic argument struck at "the jugular" of Swift v. Tyson, and showed that water, not blood, coursed its veins. Yet he was not ready to impose the sentence which his verdict seemed to require. "I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Company, but I would not allow it to spread the assumed dominion into new fields." Specifically, he insisted that the decisions of the Kentucky courts governed the legality of a contract for exclusive taxicab stand privileges at a railroad station in Kentuchy. But only Justices Brandeis and Stone concurred with l\Ir. Justice Holmes. Their six colleagues not only expressed enthusiastic adherence to Swift v. Tyson but extended the dominion of its doctrine to the utmost limits. That was in 1928.