COMMENTS THE PARAMETERS OF FEDERAL COMMON LAW: THE CASE OF TIME LIMITATIONS ON FEDERAL CAUSES OF ACTION DONNA A. BOSWELLt A far more pervasive influence on the orderly development of the law . is the habit of mind with which judges and lawyers approach the decision which no precedent necessa- rily controls.* INTRODUCTION To note that the statutory schemes enacted by Congress have gaps in them is to restate a truism.' Numerous details-ranging from seem- ingly minor concerns, such as an appropriate limitations period,' to major issues such as the definition of a "stationary source" of pollu- tion,--are "missing" from federal statutes. These missing details inevi- 4 tably give rise to lawsuits when the statutory scheme is implemented. t B.A. 1972, M.A. 1974, Wake Forest University; Ph.D. 1977, The Pennsylvania State University; J.D. Candidate 1989, University of Pennsylvania. * Stone, The Common Law in the United States, 50 HARV. L. REv. 4, 9 (1936). See Friendly, The Gap in Lawmaking-Judges Who Can't and Legislatures Who Won't, 63 COLuM. L. REV. 787, 792 (1963) [hereinafter Friendly, The Gap in Lawmaking]. I See, e.g., Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78kk (1982 & Supp. IV 1986) (no statute of limitations specified); Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1982 & Supp. IV 1986) (same); Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (1982 & Supp. III 1985) (same); the Civil Rights Acts, 42 U.S.C. §§ 1981-88 (1982) (same); Communications Act of 1934, 47 U.S.C. §§ 151-610 (1982 & Supp. III 1985) (same); Military Selective Service Act, 50 U.S.C. §§ 460-73 (1982) (same). I See, e.g., Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 697, (codified at 42 U.S.C. § 7411 (1982)) (no definition of "stationary source" provided). " This Comment will focus on the case of "missing" federal statutes of limitations. Time limitations differ from other statutory gaps in that they have a history of being independently filled by reference to state "procedural" statutes. However, this differ- (1447) 1448 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 136:1447 Because there is no mechanism, short of enacting an amending statute, for Congress to add or change an element of the statute,' what may have begun as a congressional omission necessarily becomes part of the disputes that courts must resolve. Whether one regards these gaps as flaws produced by the inade- quacy of the legislative process,6 or as an inevitability of legislating in a complex society,7 these statutory interstices must be filled if the statu- tory scheme is to provide citizens with the rights and services envisioned by its enactors. And because the judiciary is charged with deciding the cases and controversies federal statutory schemes engender, the job of filling in the gaps necessarily falls to the courts. As Justice Stevens recently wrote for the Supreme Court: "Inevitably our resolution of cases or controversies requires us to close interstices in federal law from time to time .... ,,8Although the Court may be reluctant to declare a specific rule,9 to decide the case is to create a policy to fill the gap.' ° In ence serves primarily to sharpen the issues a court must consider in making federal common law. See infra notes 95-112 and accompanying text. Although the Sherman Antitrust Act, ch. 647, § 7, 26 Stat. 209 (1890), 15 U.S.C. § 15 (1982), was enacted without a statute of limitations, Congress amended it on July 7, 1955, to add a four year time bar. See Ch. 283, § 4B, 69 Stat. 282, 282-83, (codified at 15 U.S.C. § 15(b) (1982)). Limitations have also been enacted for copy- right actions, see 17 U.S.C. § 507 (1982), and for patent actions, see 35 U.S.C. § 286 (1982). 8 See, e.g., Friendly, The Gap in Lawmaking, supra note 1, at 792 ("What I do lament is that the legislator has diminished the role of the judge by occupying vast fields and then has failed to keep them ploughed."); Note, Disparitiesin Time Limita- tions on Federal Causes of Action, 49 YALE L.J. 738, 738 (1940) (attributing the lack of a limitation period to "legislative inertia"). " See, e.g., United States v. Little Lake Misere Land Co., 412 U.S. 580, 593 (1973) ("[Tlhe inevitable incompleteness presented by all legislation means that inter- stitial federal lawmaking is a basic responsibility of the federal courts."); Friendly, In Praiseof Erie-And of the New Federal Common Law, 39 N.Y.U. L. REv. 383, 419 (1964) [hereinafter Friendly, In Praise of Erie] ("One of the beauties of [common law- making by federal judges] is that it permits overworked federal legislators . so easily to transfer a part of their load to federal judges, who have time for reflection and freedom from fear as to tenure . "). S West v. Conrail, 107 S. Ct. 1538, 1542 (1987). In rejecting a party's request that the Court devise a uniform time limitation to close the statutory gap, Justice Stewart called the creation of such a rule a "bald... form of judicial innovation." UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 701 (1966). '0 In Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366-72 (1977), the Court refused to fill the gap with the State's limitation period, deciding instead that there was no time bar on plaintiff's claim. While the Court did not supply a limitations period, the decision, nonetheless, established a policy for the administration of EEOC lawsuits in the state of California. Presumably, the only way the Court could avoid "declaring" such a policy is to refuse to grant certiorari, thus allowing the various solutions jerry- built by the lower courts to implement incomplete statutes. Refusing to hear a case or apply a statute, however, is, as is evident in Judge Easterbrook's approach, a very explicit policy statement. See Easterbrook, Statutes' Domains, 50 U. Cm. L. REV. 533, 19881 FEDERAL COMMON LAW filling these gaps the courts create federal common law,11 which be- comes an integral part of the statutory scheme as it is implemented. The Court traditionally has approached the task of making federal common law as though it were challenged to tread a narrow path be- tween unacceptable alternatives. The mainstream of judicial analysis has not generally favored the notion of an unfettered judiciary "legislat- ing" in the interstices of congressional enactments. 2 The Court, never- theless, is acutely aware that it must fill the gaps or it will be unable to adjudicate the cases arising under these laws." In effect, interstitial lawmaking requires the Court to walk the line between shirking its constitutionally mandated task of adjudicating cases and controversies, and usurping the legislative power of the Congress by declaring its own rules for deciding disputes. The constraints that channel the Court's federal common law- making activity have been the subject of considerable debate." Is this 534 (1983). 11 The distinction between federal common law making and statutory construction is a fine one. Traditionally, the term "federal common law" describes what a court has created when filling an actual gap in a statutory scheme, as well as a court's creation of law on the basis of a jurisdictional grant, such as admiralty law. Statutory construction, on the other hand, is the result of interpreting the ambiguous words of a statute, such as the Sherman Act, so that the congressional scheme can be implemented. See Westen & Lehman, Is There Life for Erie after the Death of Diversity?, 78 MICH. L. REV. 311, 331-36 (1980). 12 See Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639 (1981) ("Nothing in these statutes refers to [the matter in question], and if such a right exists it must be by implication. Our focus, as it is in any case involving the implication of a right of action, is on the intent of Congress."); Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Cannons About How Statutes Are to be Con- strued, 3 VAND. L. REV. 395, 400 (1950) (commenting on the Formalists' insistence on precise language). However, Westen and Lehman note that: [T]o say that Congress's authority to legislate isfinal does not mean it is exclusive. The federal courts possess a competence to "make" law by vir- tue of their constitutional authority to say what the law is. Article III vests them with the "Judicial Power," the power to interpret the law in the course of resolving individual "cases and controversies." This power to interpret the actions and silences of Congress-to "say what the law is"-is an obvious source of lawmaking power. Westen & Lehman, supra note 11, at 326. IS See West v. Conrail, 107 S. Ct. 1538, 1542 (1987); United States v. Little Lake Misere Land Co., 412 U.S. 580, 593 (1973); Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943). 14 See Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 888 (1986); Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 1-7 (1985). At the metatheoretical level this is the same debate that characterizes contemporary analyses of statutory interpretation. See Easterbrook, The Supreme Court 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 4-18 (1984); Eskridge, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1479 (1987). Much of the debate focuses on the dispute between Critical Legal Studies' proponents, and those who would reconstruct a legislature's 1450 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.