Untethered Norms After Erie Railroad Co. v. Tompkins: Positivism, International Law, and the Return of the

Abstract

Positivism, in the American legal system, is the jurisprudence of choice. Law is not some metaphysical creation arising by spontaneous generation out of logical or philosophical first principles, which human judges then decipher/ Positivism tethers a legal norm securely to the entity that created it, with that same official entity calling the shots when the time comes to apply, interpret, alter, or overrule it. Untethered norms are dismissed as mere "Brooding omnipresences." The case most associated with the Supreme Court's endorsement of positivism is Erie Railroad Co. v. Tompkins. In an opinion by Justice Brandeis that dabbled in American history, policy, and jurisprudence—in addition to the usual constitutional law and statutory construction—the positivists on the Court held that federal judges should cease their independent determination of "general common law" and follow in the footsteps of their state court colleagues sitting a block away.