Cecily Zamora
Federal common law is a term used to describe common law developed by federal courts in the United States, rather than by individual state courts. Federal common law is applied in areas where Congress has empowered the courts to develop substantive law, and where a federal rule of decision is necessary to protect federal interests. This can occur when federal law pre-empts state law, or when federal courts are granted jurisdiction over matters of federal concern. While the existence of federal common law is generally accepted, its scope and applicability are often debated, with some arguing that it is limited to specific circumstances and does not bind state courts.
| Characteristics | Values |
|---|---|
| Definition | Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. |
| History | American courts originally fashioned common law rules based on English common law. In 1812, the Supreme Court held that federal courts had no jurisdiction to define new common law crimes. In 1938, the Supreme Court overturned a previous decision, holding that federal courts exercising diversity jurisdiction had to apply state law as the substantive laws. |
| Jurisdiction | Federal common law operates when something has displaced or restricted the states' lawmaking powers. Federal courts have jurisdiction over matters of federal concern, meaning federal law and federal law that pre-empts state law when an issue is within the federal government's exclusive domain. |
| Powers | Federal courts may develop federal common law to protect federal interests, such as resolving conflicts among states, or to apply if Congress has authorized them to establish substantive law. Federal common law includes procedural common law, which regulates internal court processes. |
| Limitations | Federal common law does not bind state courts and falls outside recognized enclaves of federal common law. It is also not entirely subject to Congress. |
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What You'll Learn
Federal common law vs state common law
Federal common law is a term in United States law that describes common law developed by federal courts instead of the courts of individual states. Federal common law is created by federal courts to address issues not covered by constitutional or statutory provisions. It is valid only to the extent that Congress has not repealed it. Federal common law is applied in cases where a federal rule of decision is necessary to protect uniquely federal interests. Examples of such areas include admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights.
State common law, on the other hand, is created by the courts of individual states and is the most common form of common law in the United States. State legislatures often codify common law rules from their state courts to give them the force of a statute or to modify or replace the rule. An example of this is the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, which defined a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section of the Labor Code that codified and expanded on the court's decision.
The relationship between federal and state common law has been a subject of debate and litigation. In the 1842 case of Swift v. Tyson, the U.S. Supreme Court held that federal courts hearing cases under their diversity jurisdiction had to apply the statutory law of the states but not the common law developed by state courts. This decision was based on the idea that federal courts would craft superior common law that state courts would adopt. However, this expectation was not met, and in the 1938 case of Erie Railroad v. Tompkins, the Supreme Court overturned Swift v. Tyson, holding that federal courts in diversity cases had to apply the same substantive laws as the courts of the states in which they were located.
Despite the Erie decision, federal common law continues to govern in certain areas, particularly where Congress has given the courts the power to develop substantive law or where federal interests are at stake. Federal common law may also be created to fill gaps in federal statutes, such as in the context of the Employee Retirement Income Security Act of 1974 (ERISA).
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Federal common law in federal courts
Federal common law refers to a set of legally binding federal rules that are adopted by federal courts to govern issues that are not expressly addressed by a constitutional or statutory provision. Federal common law is developed by federal courts instead of the courts of individual states.
The development of federal common law by federal courts can be traced back to the 1842 case of Swift v. Tyson, where the U.S. Supreme Court held that federal courts hearing cases under their diversity jurisdiction had to apply the statutory law of the states but not the common law developed by state courts. The decision in Swift v. Tyson was based on the idea that federal courts would craft superior common law that would be voluntarily adopted by state courts. However, this expectation was not met, as the principles of common law in different states diverged significantly in the following decades. The Supreme Court overturned its decision in Swift v. Tyson in 1938 in the case of Erie Railroad v. Tompkins, holding that federal courts exercising diversity jurisdiction had to apply the same substantive laws as the courts of the states in which they were located. The Supreme Court explicitly stated that there is no "federal general common law".
Despite the Erie decision, federal common law continues to govern in certain areas. These areas fall into two basic categories: where Congress has granted the courts the power to develop substantive law, and where a federal rule of decision is necessary to protect uniquely federal interests. For example, Congress has empowered the courts to develop common law rules in areas such as admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. In addition, federal courts have developed federal common law to fill statutory gaps in the context of the Employee Retirement Income Security Act of 1974 (ERISA).
It is important to note that federal common law is not limited to substantive matters but also extends to matters of procedure. Federal law includes procedural common law, which focuses on regulating internal court processes rather than substantive rights and obligations. Doctrines such as abstention, forum non conveniens, remittitur, stare decisis, and preclusion are examples of procedural common law. However, procedural common law does not bind state courts and falls outside the recognized enclaves of federal common law.
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Procedural common law
Federal common law refers to the legal rules developed and applied by federal courts in the United States, rather than by individual state courts. While most common law is found at the state level, federal common law continues to govern in specific areas, such as admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights.
Procedural law, also known as adjective law or remedial law, comprises the rules and processes by which courts hear and determine civil, criminal, or administrative proceedings. It is designed to ensure the fair and consistent application of due process and fundamental justice. Procedural law outlines the means by which cases are brought, parties are informed, evidence is presented, and facts are determined. It includes concepts such as the right to information, access to justice, the right to counsel, the right to public participation, and the right to confront accusers.
The power of federal courts to create procedural common law is a topic of debate. One theory, based on the enclave theory, suggests that the constitutional structure prevents states from regulating federal court procedures, leaving it to federal courts to specify procedural rules when Congress does not. Another theory posits that this authority stems directly from Article III's grant of judicial power, recognising that federal court procedures are beyond state control.
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Federal common law and the US Constitution
Federal common law is a term used to describe common law developed by federal courts instead of the courts of individual US states. Federal common law is not limited to matters of substance; it also covers matters of procedure. The federal courts may develop federal common law to protect federal interests, such as resolving conflicts among states.
The US Constitution vests legislative powers in a Congress of the United States, consisting of a Senate and a House of Representatives. This means that even when a federal court has the authority to make common law, that law is subject to alteration by Congress. In the federal system, there is a preference for statutes enacted through the legislative process as the source of criminal law.
The Supreme Court decision in United States v. Hudson (1812) held that federal courts had no jurisdiction to define new common law crimes. For federal crimes, there must be a constitutionally valid statute defining the offense, jurisdiction of federal courts, and the penalties. While there is no Supreme Court decision prohibiting state courts from defining common law offenses, they are rare, and most states have abolished common law offenses.
Federal common law continues to govern in several areas, including admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. Federal courts have developed federal common law to fill statutory gaps in areas such as the applicable statutes of limitation, rules governing coordination of benefits disputes, and the make-whole doctrine.
The Erie Railroad v. Tompkins (1938) decision held that federal courts exercising diversity jurisdiction must use the same substantive laws as the courts of the states in which they are located. This decision overruled the earlier Swift v. Tyson case, which had held that federal courts hearing cases under diversity jurisdiction had to apply the statutory law of the states but not the common law developed by state courts.
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Federal common law and legislation
Federal common law is a term used in the United States to describe common law that is developed by federal courts, as opposed to the courts of individual states. Federal common law is not limited to matters of substance; it also includes matters of procedure.
Federal common law can be applied in two basic categories of cases. The first is where Congress has given the courts the power to develop substantive law. For example, Congress has empowered the courts to "develop a federal common law of rights and obligations under ERISA-regulated plans". The second category is where a federal rule of decision is necessary to protect uniquely federal interests. For instance, federal common law can be used to resolve conflicts among the states.
The legitimacy of federal common law is a subject of debate. Some commentators argue that federal common law can only exist where it has displaced or restricted the states' lawmaking powers. In other words, it must be based on a written federal enactment that either establishes the rule or authorises the judiciary to do so. This view holds that every issue of law resolved by a federal judge involves interpretation of a written text, such as a regulation, statute, or the Constitution.
However, others argue that federal common law can exist in areas where the Constitution, a federal statute, or a federal treaty prevents state law from providing a resolution. In these cases, courts may articulate a rule of decision as a matter of unwritten law. This interpretation allows for a broader scope of federal common law, but some modern federal judges disagree with this approach due to concerns about the judiciary engaging in a robust type of "lawmaking".
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Frequently asked questions
Federal common law refers to common law developed by federal courts, as opposed to the courts of individual states.
Yes, there is a limited body of federal common law. However, this is restricted to areas where federal law pre-empts state law, and federal courts have no jurisdiction to define new common law crimes.
Federal common law can be found in admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. Federal courts have also developed federal common law in the context of the Employee Retirement Income Security Act of 1974 (ERISA).
Yes, even when a federal court has the authority to make common law, that law is subject to alteration by Congress.
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