Loading ...
Sorry, an error occurred while loading the content.

When Federal Common Law applies

Expand Messages
  • Legalbear
    [27] By now it is clear that there is no federal general common law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938).
    Message 1 of 1 , Aug 3, 2006

      [27]     By now it is clear that there is "no federal general common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938). However, in a few, limited instances, the Court has formulated specific "federal common law." See Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S. Ct. 1441, 1144, 10 L. Ed. 2d 605 (1963). These instances "fall into two categories: those in which a federal rule of decision is "necessary to protect uniquely federal interests,' Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426, 84 S. Ct. 923, 939, 11 L. Ed. 2d 804 (1964), and those in which Congress has given the courts the power to develop substantive law, (Wheeldin v. Wheeler, 373 U.S. at 652, 83 S. Ct. at 1445)." Texas Industries, 101 S. Ct. at 2067. If Illinois v. City of Milwaukee , 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972) (" Illinois I"),*fn10 exemplifies the first category, the paradigm of the second is probably Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957).



      [28]     As Justice Jackson remarked, in situations such as this in which no federal statute clearly applies the question arises



      [29]     whether in deciding the case we are bound to apply the law of some particular state or whether, to put it bluntly, we may make our own law from materials found in common law sources ....



      [30]     (To say that federal courts have no general common law) is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all the source materials of the common law, in that when we have fashioned an answer it does not become a part of the federal non-statutory or common law ....



      [31]     Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all complete statutory codes, and is apparent from the terms of the Constitution itself.



      [32]     D'Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 468-70, 62 S. Ct. 676, 684-685, 86 L. Ed. 956 (1942) (Jackson, J., concurring); see also Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S. Ct. 573, 575, 87 L. Ed. 838 (1943) ("In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards."); Bd. of County Comm'rs of County of Jackson v. United States, 308 U.S. 343, 60 S. Ct. 285, 84 L. Ed. 313 (1939) (Frankfurter, J.). Barany v. Buller, 670 F.2d 726 (7th Cir. 02/10/1982)


      PHONE #s: 970-330-3883/720-203-5142 c. 

      For mailing:  Excellence Unlimited, 2830 27th St. Ln. #B115,  Greeley , CO   80634  







      To subscribe to Tips & Tricks for court send an email to:


    Your message has been successfully submitted and would be delivered to recipients shortly.