The Common Law Powers of Federal Courts

Merrill, Thomas W.

In this article, first, I would like to inject into traditional thinking about federal common law some of the insights developed in the recent literature on nonoriginalist judicial review. Second, I would like to turn the analysis around and ask whether some of the questions that arise in the field of constitutional law -- in particular the legitimacy of nonoriginalist judicial review -- can profitably be analyzed as issues of federal common law.

I will begin with two preliminary matters involving the assumptions that underlie the analysis: in Part I, I define "federal common law," and, in Part II, I discuss the standard or norm I will apply in assessing the legitimacy of that body of law. In Part III, I will describe four general principles that combine to make up the content of the norm that I apply: the constitutional principles of federalism, separation of Powers, and electoral accountability, and the statutory restrictions imposed by the Rules of Decision Act. These general principles suggest that federal common law is legitimate insofar as it is the product of textual interpretation, understood to mean a search for the specific intentions of the draftsmen of the text. In Part IV, I will advance two doctrines -- which I term preemptive lawmaking and delegated lawmaking -- that I believe are also consistent with this norm, but that reflect two different conceptions of textual interpretation. These two doctrines expand considerably the sphere in which federal common law may be considered legitimate; together with the conclusions reached in Part III, they can be used to express a general theory of federal common law. Finally, in Part V, I will review three areas in which the issue of lawmaking by federal courts has been particularly controversial: the judicial creation of implied rights of action, "constitutional common law," and nonoriginalist judicial review. I will attempt to show how the general theory developed in Parts III and IV can help resolve these issues of legitimacy in a more coherent and conceptually satisfying manner than has thus far been achieved by either the Supreme Court or the academic commentators.


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University of Chicago Press
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November 6, 2015