State courts and the making of federal common law.

• Author: Bellia, Jr., Anthony J.

INTRODUCTION I. HOW STATE COURTS MAKE FEDERAL COMMON LAW A. Whether Federal Common Law Provides the Rule of Decision B. Whether the Content of Federal Common Law Is State or Federal Law C. What the Content of Uniform Federal Common Law Is II. WHY INHERENT AND DELEGATED POWER THEORIES ARE INADEQUATE TO EXPLAIN THE MAKING OF FEDERAL COMMON LAW BY STATE COURTS A. The Limitations of the Supremacy Clause B. Inherent and Delegated Power Theories 1. Inherent Judicial Power to Make Federal Common Law 2. Delegated Power to Make Federal Common Law III. THE JUDICIAL RESPONSIBILITY OF STATE COURTS IN MAKING FEDERAL COMMON LAW A. A Case Study B. The Necessity that State Courts Make Federal Common Law in Certain Cases C. How State Courts Historically Have Made the "Law of the Land" D. Reconciling Federal Lawmaking by State Courts with the Supremacy Clause E. Normative Considerations About How Courts Ought to Make Law IV. IMPLICATIONS FOR THE MAKING OF FEDERAL COMMON LAW BY FEDERAL COURTS CONCLUSION INTRODUCTION

Justice Brandeis famously wrote for the Supreme Court in Erie Railroad Co. v. Tompkins (1) that "[t]here is no federal general common law." (2) On the day that the Court handed down Erie, it handed down another opinion written by Justice Brandeis resolving that the rule of decision in an interstate boundary dispute was, notwithstanding Erie, "federal common law." (3) Since that day, the Court has carved out various enclaves in which courts may apply so-called federal common law as a rule of decision. (4) These enclaves include "such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." (5) In operation, the doctrine of federal common law is a ramshackle one. The boundaries of the enclaves in which it may operate are uncertain, its propriety is disputed, and the distinction between it and statutory and constitutional interpretation is elusive. (6) Legal scholars have propounded several theories that attempt to justify the existence and scope of federal common law. Most theories fall into two categories: (1) those that argue that federal courts have inherent power to make federal common law in certain circumstances; and (2) those that argue that federal courts have power to make federal common law only if Congress has delegated power to them to do so. (7) Recently, there has been a flurry of renewed interest in various aspects of federal common law. (8)

A fact that has received little attention in discussions of the power of federal courts to make federal common law is that state courts routinely make federal common law in as real a sense as federal courts make it. A few scholars have observed in passing that federal common law operates in state courts (9) and have attributed this fact to the Supremacy Clause. (10) Specifically, they have observed that if the Supreme Court of the United States (11) makes federal common law pursuant to the Constitution, that federal common law is the supreme law of the land, and state judges are bound to follow it. (12) It is not the case, however, that state courts merely follow federal common law that the Supreme Court has made; rather, state courts regularly participate in the development of federal common law themselves--in other words, they make federal common law too.

This Article takes up the following question: what, if anything, justifies the making of federal common law by state courts? The Article has four main purposes. The first purpose is to bring to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. The second purpose is to demonstrate that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. The third purpose is to offer an account of what, if anything, justifies the making of federal common law by state courts. The fourth purpose is to identify the implications of this account for the operation of federal common law in federal courts.

It is a common premise of theories explaining the operation of federal common law in federal courts that if federal courts are justified in making federal common law, they are justified in making it on the basis of the kinds of reasons that move Congress to enact federal statutes). (13) This premise is problematic in an analysis of the operation of federal common law in state courts. Indeed, analyzing the operation of federal common law in state courts reveals grounds for rethinking whether this premise is valid even in analyses of the operation of federal common law in federal courts.

The Article proceeds as follows. Part I explains how state courts make federal common law. State courts regularly must determine whether federal common law provides the rule of decision in a particular dispute and, if it does, what the substance of that rule is. In making these determinations, state courts do not in all instances mechanically apply or follow law that the Supreme Court has made; often, they participate in the making of federal common law themselves. When, for example, state courts encounter gaps in federal regulatory schemes or must decide whether to extend federal common law rules to novel claims or factual situations, their decisions may make federal law in the same way that federal court decisions may make federal common law in such circumstances. Indeed, in several instances, state court decisions have made federal common law rules that are in conflict with federal common law rules that federal court decisions have made.

Part II examines whether inherent and delegated power theories of federal common law are adequate to explain the making of federal common law by state courts. These theories, which focus primarily on the power of federal courts to make federal common law, share a common premise. They generally begin with the assumption that federal courts make federal common law on the basis of the same kinds of judgments that Congress makes when it enacts a statute: "fundamental policy judgments," (14) judgments about "national substantive policy," (15) judgments accounting for interests that Congress "takes into account," (16) or simply "unguided normative judgments." (17) They proceed to attempt to justify this manner of judicial lawmaking. As a preliminary matter, Part II explains, the Supremacy Clause is inadequate to explain the making of federal common law by state courts in this way. The Supremacy Clause provides that state judges are bound by federal law; (18) it does not provide that they have inherent power to make the law to which the Clause renders them "bound," nor that an act of Congress delegating legislative power to them to make federal law would be one "made in Pursuance" of the Constitution. Part II proceeds to examine whether inherent and delegated power theories that legal scholars have developed to explain whether and when federal courts are justified in making federal common law are adequate to explain whether and when state courts are justified in making federal common law. It concludes that each theory, applied on its own terms, is inadequate to do so.

Part III proceeds to offer, by means of a case study, an explanation of the making of federal common law by state courts that accounts for historical practice, constitutional structure, and certain normative considerations about the way in which courts can and ought to make law. First, Part III explains, it is sometimes necessary for state courts to make federal common law in order to render decisions in cases that they have a constitutional duty to decide. Even if a federal statute or constitutional amendment divested state courts of all power to make federal common law, state courts still would, in a sense, have to make federal common law in order to decide certain cases within their jurisdictions. State courts could no more comply with a command that they adjudicate claims arising under federal law but make no new federal law with respect to them than they could comply with a command that they both decide a case and not decide it. When it is necessary for a state court to make federal common law in order to enforce federal law that it has a duty to enforce, the court is justified in making a federal common law rule by which to decide the case. That a state court is justified in such cases in making some federal common law rule, however, does not mean that a state court is justified in making any federal common law rule.

It is a common premise in writings on federal common law that if a court is justified in making federal common law governing a matter (because it has an inherent or delegated power to do so), the court is justified in making it on the basis of the kinds of forward-looking policy considerations that might move Congress to enact a statute governing the matter. In the case of state courts, this premise lies in tension not only with the way in which state courts historically have made federal common law, but also with the Supremacy Clause and certain normative claims about the way in which courts ought to make law.

As a general practice, state courts historically have not claimed to make federal common law (19) for the kinds of reasons that move legislatures to make law. Rather, they have represented themselves as rendering decisions that comport with the requirements of existing federal law. If we take them at their word, state courts have made federal common law not with the intent to set national policy on a new course, but as a necessary consequence of their best efforts to discern and apply existing principles of national law. This manner of lawmaking differs from the manner in which scholars have presumed that courts make federal common law and the manner in...