Pace Law Review Volume 12 Issue 2 Spring 1992 Article 3 April 1992 The Lawmaking Power of the Federal Courts Larry Kramer Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992) Available at: https://digitalcommons.pace.edu/plr/vol12/iss2/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. The Lawmaking Power of the Federal Courts Larry Kramer* My only previous encounter with the subject of federal com- mon law was casual: before beginning a clerkship with Henry Friendly, I made it a point to read his academic writings, includ- ing the deservedly famous In Praise of Erie.' My preliminary thoughts on the subject therefore began where the Judge's left off, which is to say with the idea that federal common law repre- sents a "centripetal tool incalculably useful to our federal sys- tem" and that, while we may have not yet achieved the best of all possible worlds with respect to the relationship between state and federal law, "the combination of Erie with Clearfield and Lincoln Mills has brought us to a far, far better one than we have ever known before." 2 At first, I just assumed that this must be correct. Judge Friendly was seldom wrong about such mat- ters, particularly when consideration of a problem led him to a judgment contrary to his naturally conservative tendencies re- specting federal jurisdiction. Imagine my suprise, then, to discover that Judge Friendly's belief in a sweeping power to make federal common law is any- * Professor of Law, University of Michigan Law School. Presented to the Federal Courts Section at the 1992 Meeting of the American Association of Law Schools. Having never written a word about federal common law, I was somewhat surprised when Don Doernberg invited me to join this panel (though it did cross my mind that he may have asked me precisely because I have never written on the subject). I agreed to participate for the same reason I have never written on federal common law, which is that I have never really thought about the problem much. And since I have often thought that I should think about it, the occasion provided a good excuse. I am grateful to participants for their comments. I am also grateful to Craig Allison, Akhil Amar, Lee Bollinger, Erwin Chemerinsky, Steven Croley, Heidi Feldman, Barry Friedman, Steve Gilles, Don Herzog, James Hopenfeld, Jeffrey Lehman, Lawrence Lessig, Angela Luera, Daniel Meltzer, Tom Merrill, Geoffrey Miller, Richard Pildes, Richard Posner, and Terrance Sandalow for reading and commenting on an earlier draft. 1. Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. REV. 383 (1964), reprinted in H. J. FRIENDLY, BENCHMARKS 155 (1967). 2. FRIENDLY, supra note 1, at 194-95. 1 PACE LAW REVIEW [Vol. 12:263 thing but uncontroversial. While he has a few fellow travel- lers - including Martha Field on this panel s - the journals are filled with articles questioning the legitimacy of even very conventional forms of federal common law. Martin Redish mounts the most extreme attack, arguing that the whole notion of lawmaking by federal judges is contrary to the principles on which the nation was founded." To be sure, Redish relies pri- marily on the Rules of Decision Act,' but the gist of his critique is that basic policy choices must be made by politically account- able actors,6 and federal common law violates that prescription even without a specific statutory prohibition. Tom Merrill, George Brown, and Don Doernberg take less extreme positions, but still treat federal common law as something questionable that ought to be circumscribed more narrowly than Judge Friendly believed or than has been true in practice.7 These arguments puzzled me. Could a practice so well es- tablished and so apparently useful really be illegitimate? On the 3. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 883 (1986). Louise Weinberg has also written in defense of an even broader federal common lawmaking power. See Louise Weinberg, Federal Common Law, 83 Nw. U. L. REV. 805 (1989). 4. See MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER: JUDICIAL JURISDICTION AND AMERICAN POLITICAL THEORY 29-46 (1991). (Much of the chapter on federal common law was published earlier in Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist"Perspective, 83 Nw. U. L. REV. 761 (1989)). 5. According to Redish, the Act's plain language prohibits federal judge-made law. REDISH, supra note 4, at 30. Other commentators disagree, finding the statute (especially its obscure reference at the end to cases "where they apply") anything but plain. Indeed, the consensus seems to be that the Rules of Decision Act does not limit federal common law. See, e.g., Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity?, 78 MICH. L. REV. 311, 364-77 (1980); Weinberg, supra note 3, at 818-19. This apparently is also the view of the Supreme Court, which has studiously ignored the Act in its common law decisions. See, e.g., Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Consequently, while debating how to read the Rules of Decision Act might be interesting, I do not propose to do so in this paper, but will instead limit myself to exploring the scope of the federal courts' constitutional powers to make common law. 6. REDISH, supra note 4, at 9-10. 7. See George D. Brown, Federal Common Law and the Role of the Federal Courts in Private Adjudication - A (New) Erie Problem?, 12 PACE L. REV. 229 (1992); George D. Brown, Of Activism and Erie - The Implication Doctrine's Implications for the Nature and Role of the Federal Courts, 69 IOWA L. REV. 617 (1984); Donald L. Doernberg, Judicial Chameleons in the "New Erie" Canal, 1990 UTAH L. REV. 759; Thomas Merrill, The Judicial Prerogative,12 PACE L. REV. 327 (1992); Thomas Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. i (1985). https://digitalcommons.pace.edu/plr/vol12/iss2/3 2 1992] FEDERAL COURTS SYMPOSIUM other hand, how does one justify letting federal courts make law? Here I found myself less than completely satisfied with proponents of federal common law. Professors Field and Wein- berg have made worthy contributions, but their articles rely on the fact that federal courts already engage in the practice with- out explaining why this has normative significance or should be permitted. Yet if longstanding practice alone justifies judicial lawmaking, Erie itself was wrongly decided, for one thing about the Swift doctrine that nobody doubted was that it was well established. Accordingly, in these brief comments I propose to consider the arguments for and against recognizing a broad constitutional power to make federal common law. There is, of course, a lot more to debate than whether the Constitution permits federal courts to make common law. After all, having a power does not require using it. (Congress has never come close to exercising all of its power under the Constitution.) So it does not automati- cally follow that federal courts should fashion federal common law whenever they can. But that raises questions of expediency and good policy - questions to be worked out in particular contexts and through give and take with the other branches of government. Here I wish only to describe and defend a fairly broad (though not limitless) conception of the lawmaking power of the federal courts, and in this way, hopefully, to refocus de- bate on the policy questions. I. The Benefits of Common Lawmaking The first thing we need to consider is why giving courts the power to make common law might be a good thing. To begin, then, put aside questions of federal versus state law and con- sider a more fundamental question: why let courts make com- mon law at all? Governance on a large scale requires establishing institutions to administer law and justice. The people create a government and give it sovereignty, by which I mean simply the power to make and enforce laws. In conferring this power, the 8. Talk about "the people" establishing a government is neither historically nor de- scriptively accurate, even in the United States. It is, rather, a rhetorical device that cap- tures our understanding of popular control as the basis for governmental legitimacy. I follow the convention here because nothing in this brief description turns on the details 3 PACE LAW REVIEW [Vol. 12:263 people must choose areas over which their government shall have authority. It is possible to give government unrestricted power to make rules respecting any and all spheres of life. How- ever, it is also possible to limit the areas in which government can act, preserving some matters for governance by private or non-governmental institutions. In addition, the people must al- locate whatever authority they give their government among its various departments. Indeed, establishing clear lines of author- ity is essential if government is to function properly and work for the citizenry rather than waste its time bickering about who is authorized to do what.9 (This aspect of separation of powers is often overlooked because of our excessive focus on separation as a means of preventing undue concentrations of power.) In democratic societies, formal authority to make law is typ- ically vested in representative bodies whose members are chosen by some form of popular mandate.