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In Swift v. Tyson, the Supreme Court held that section 34 of the Judiciary Act of 1789 did not require a federal court in a commercial case to apply the rule followed by the courts of the state in which it sat. Instead, a federal court was free in such a case to follow the general law merchant. Legal historians have judged this holding a radical departure from earlier understandings of section 34. In this Article, Professor Fletcher demonstrates that the holding in Swift was largely a restatement of settled law. In the early nineteenth century, section 34 was regarded as the partial embodiment of the general principle of lex loci, which required courts to follow local law in cases where it applied. Section 34 and the lex loci principle were never thought to prevent a federal court from following the general common law in cases where it applied. Professor Fletcher uses as his example the law of marine insurance from about r8oo to 182o. During those years, state and federal courts succeeded in creating a stable, uniform system of common law that the federal courts applied without any hint that section 34 might require otherwise. The analysis of marine insurance cases suggests that we revise our historical judgment of Swift: these cases show that, long before Swift, there was a broad consensus that it was proper for federal courts sitting in diversity to apply the general common law in adjudicating commercial disputes. IN 1842, the Supreme Court held in Swift v. Tyson1 that it was not bound by section 34 of the Judiciary Act of 17892 to follow state court decisions on matters of general commercial law. The conventional wisdom of modern legal scholarship is that this decision marked a sudden and dramatic change from prior practice. 3 Yet for all the

The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance