Federal Common Law

This paper argues that the familiar severe doctrinal limits on federal judicial lawmaking are not constitutionally required or necessary in any fundamental way to thinking about federal judicial lawmaking. Laying to rest misunderstandings flowing from misreadings of Erie v. Tompkins, this paper argues, rather, that case law, either federal or state, arises naturally from the essential province and duty of courts to decide issues properly before them. Our inhibitions about federal rules of decision flow from our apprehensions that the sphere of national lawmaking power will encroach upon the sphere of state lawmaking power. The paper argues that this fear cannot be addressed with sweeping prohibitions on the decision of questions that are, in fact, federal. Examples are given to demonstrate that, while the states retain the broad general power, when identifiable special national interests arise it cannot be supposed that Congress or the courts are disabled from dealing with those interests rationally.