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Untethered Norms After Erie Railroad Co. v. Tompkins: Positivism, International Law, and the Return of the "Brooding Omnipresence," 54 William & Mary Law Review 725 (2013)


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 'iDrooding


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.

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