Constitutional Interpretation and the Brooding Omnipresence
Publisher
Law and Liberty
Date
2022-11-23
True to its name, the “brooding omnipresence” of the federal common law looms large over Michael Greve’s The Upside-Down Constitution. In several chapters (most notably, chapters six and ten), Greve discusses the Court’s 1938 opinion in Erie Railroad Co. v. Tompkins, which upended the preexisting (and according to Greve, largely sensible) governing conflict-of-law regime most famously described almost a century earlier in Swift v. Tyson. The shift from Swift to Erie is both an episode in Greve’s critique of the Supreme Court’s current approach to federalism and also illustrates his broader critique of constitutional interpretation more generally. I will address these two issues in order.
Citation
Aditya Bamzai, Constitutional Interpretation and the Brooding Omnipresence (reviewing Michael S. Greve, The Upside-Down Constitution) Law and Liberty (2022).