FEDERAL COMMON LAW

Question 1

FEDERAL COMMON LAW

Generally

Answer 1

When there is no federal statute, constitutional provision, or treaty that governs, the Court must decide whether to make federal common law. There is no uniform theory, but rough guidelines exist.

Question 2

FEDERAL COMMON LAW

General Principles:

Answer 2

1. Federal common law governs federal questions in state and federal courts (must be federal function).
2. If claim arises under federal common law, it invokes federal question jurisdiction under §1331.
3. Areas for federal common law
   a. Statutory gaps
   b. Implied causes of action
   i. Constitutional – BIVENS
   ii. Statutory – CORT
   c. Jurisdictional grant over field
   d. Federal government in proprietary role
   e. International relations
   f. Interstate disputes, admiralty
   g. Claim and issue preclusion of federal judgments

Question 3

Four Types of Fed Common Law:

Answer 3

1. Creating substantive rules of decision to protect fed interests (Clearfield Trust)
   a. Court created new federal rule from previous SCOTUS decisions. Query: is this a violation of separation of powers?
2. Substantive rules of decision to promote underlying policy of fed statute (Textile Workers Union v. Lincoln Mills)
3. Private rights of action under Constitution, statute, or regulation (Bivens, Cannon)
4. Interstitial rulemaking

Question 4

Applying Federal Common Law Analysis:

Answer 4

1. Is subject matter within scope of federal competence?
2. Should state law control?
   a. If yes, then no FCL.
3. Should there be new federal rule?
   a. If so, should court create new federal rule OR adopt state law as federal rule (law of forum state)?
   i. Boyle: displace state law where there is significant conflict between federal policy interests and operation of state law.
   ii. Semtek: no “significant conflict,” but adopt state law rule to discourage forum shopping.
   - Court said we will use the CA state law rule as the Federal Rule – even though the same rule, federal law theoretically “displaced” state rule.
   iii. NOTE: CANNOT RECONCILE THESE TWO CASES.

The federal judiciary can only create FCL where Congress has the power to generate law and FCL enjoys the same status as federal legislation. Where particular friends have been delegated to the judiciary it is an invitation to create FCL.

Question 5

Did Congress Grant Judiciary FCL Power Analysis:

Answer 5

1. Does the federal judiciary have competence?
2. Does the federal program necessitate a uniform federal rule?
3. Would state law frustrate specific objective of the federal program?
   a. State law preempted when…
   i. Explicit Congressional preemption
   ii. Congressional occupation of the field/scheme of federal regulation is so pervasive to infer Congress left no room for state law
   iii. Federal interest so dominant in field it must preclude
   iv. Conflict between state and federal law will interfere with administration of federal program.