1. Even under Swift's reading of the Rules of Decision Act, federal courts had to follow state courts' decisions in a few areas -- state statutes and local usages. What is meant by local usages and why do you think an exception was created in that area?

2. What are the reasons according to Brandeis that the Swift rule is problematic pragmatically?

3. Take a good look at Reed's concurrence. Erie would be a good deal easier to understand if it had merely involved a reinterpretation of the Rules of Decision Act, rather than a reading of the Constitution. Why is Reed worried about deriving the Erie rule from the Constitution?

4. The most difficult part of the Erie case is figuring out just why the creation of federal common law in diversity cases is unconstitutional. Here are some questions to focus this problem in your mind.

There are at least two ways that federal substantive common law in diversity cases of the type allowed by Swift could be considered problematic constitutionally. The first is that this involved federal lawmaking in areas where the United States in general had no legislative power. But is that true? Couldn't Congress have legislated under the Commerce Clause in those areas?

The second problem is that federal courts have no common law making power under the Constitution. Does it matter that there is no such grant of power in the Constitution? Given that state/colonial courts had common law making power at the time of the Constitution, isn't it fair to say federal courts would have this too unless the Constitution said they didn't? In addition, does the lack of a grant of common law making power to federal courts in the Constitution mean that federal courts can't make procedural common law? Common law concerning admiralty? Common law in other areas in which the federal government has an overriding interest (for example, the common law rules concerning federal commercial paper)?

What if Congress delegated its legislative power to federal courts by statute? Would that be unconstitutional according to Brandeis's opinion in Erie?