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Choice of law in Medieval France
Essays in Legal History in Honor of Felix Frankfurter, Morris D. Forkosch, John D. Cushing The American Journal of Legal History Vol. 11, No. 2 (Apr., 1967), pp. 214-217
In 1944, Mr. Justice Frankfurter stated for the Supreme Court in Guaranty Trust Co. u. York:
‘<. , . The question is whether such a statute concerns merely the manner and the means by which a right to recover, as recognized by the State, is enforced, or whether such statutory limitation is a matter of substance . .; namely, does it significantly affect the result of a litiga- tion. , “. [I]n all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome . should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court. .‘
To call his argument “medieval” would seem nowadays a gratuitous insult, since the word “‘medieval” has come to mean unreasonable, unenlightened, backward,, barbarous, “Oh more than Gothic ignorance,” and nothing medievalists do can seem to change this unfortunate linguistic fact. Yet medieval his argument was, if we can use that adjective properly to refer to the Middle Ages rather than to barbarity. Justice Frankfurter was here defining the “great divide” between substance and procedure in diversity cases on the basis of Erie R. Co. 2). Tompkins; in doing so, he utilized a choice of law – in diversity cases already put forward in the Thirteenth Century.