federal common law
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Federal common law is a term of
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
law used to describe
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
that is developed by the
federal courts Federal court may refer to: United States * Federal judiciary of the United States ** United States district court, a particular federal court Elsewhere * Federal Court of Australia * Federal courts of Brazil * Federal Court (Canada) * Federal co ...
, instead of by the courts of the various states. The United States is the only country to combine the creation of common law doctrines with a complete
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
, wherein the national
supreme court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
has virtually no power to review state court decisions to determine whether the state courts have followed state laws. The
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
is sometimes said to have federal common law, but because all state and territorial courts are directly appealable to the High Court, this is indistinguishable from a general common law. In contrast, the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has effectively barred the creation of federal common law in areas traditionally under the authority of state courts. Nevertheless, there are several areas where federal common law continues to govern.


The ''Swift'' doctrine

Until 1938, federal courts in
America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
followed the doctrine set forth in the 1842 case of ''
Swift v. Tyson ''Swift v. Tyson'', 41 U.S. (16 Pet.) 1 (1842), was a case brought in diversity in the Circuit Court for the Southern District of New York on a bill of exchange accepted in New York in which the Supreme Court of the United States determined tha ...
''. In that case, the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different
U.S. states In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. The reasoning behind the decision in ''Swift v. Tyson'' was that the federal courts would craft a superior common law, and the states would choose to adopt it. This hope was not fulfilled, however, as the principles of various states' common law continued to dramatically diverge. Some litigants began to abuse the availability of the federal courts for the specific purpose of having cases decided under the federal common law principles.


The ''Erie'' doctrine

In 1938, the Supreme Court decided ''
Erie Railroad v. Tompkins ''Erie Railroad Co. v. Tompkins'', 304 U.S. 64 (1938), was a landmark U.S. Supreme Court decision in which the Court held that there is no general American federal common law and that U.S. federal courts must apply state law, not federal law, to ...
''. ''Erie'' overruled ''Swift v. Tyson'', holding instead that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the ''Erie'' Court put it, there is no "federal general common law", with the operative word being "general". The ''Erie'' decision did not put an end to other types of federal common law. Several areas of federal common law remain, in two basic categories: areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests. The U.S. Congress has given courts power to formulate common law rules in areas such as
admiralty law Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between priva ...
,
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, bankruptcy law,
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, and
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. Congress often lays down broad mandates with vague standards, which are then left to the courts to interpret, and these interpretations eventually give rise to complex understandings of the original intent of Congress, informed by the courts' understanding of what is just and reasonable. Furthermore, in the 1943 case of ''
Clearfield Trust Co. v. United States ''Clearfield Trust Co. v. United States'', 318 U.S. 363 (1943), was a case in which the Supreme Court of the United States held that federal negotiable instruments were governed by federal law, and thus the federal court had the authority to fa ...
'', the Court recognized that federal courts could still create federal common law, albeit in limited circumstances where federal or Constitutional interests were at stake, Congress had inadequately addressed the situation sub judice, and the application of individual state laws in various jurisdictions would create unacceptable levels of diversity or uncertainty. When fashioning new federal common law, the Court may either adopt a reasonable state law, look to its own precedent, or create new law.


Congressional repeal of federal common law

Federal common law is valid only to the extent that Congress has not repealed the common law. The Supreme Court has explained that, "when Congress addresses a question previously governed by a decision resting on federal common law, the need for such an unusual exercise of law-making by federal courts disappears." During the era when the Constitution was written, it was understood that common law was alterable by legislatures. For example,
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charlest ...
emphasized in ''
The Federalist Papers ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The co ...
'' that the New York Constitution made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." Thus, even when a federal court has authority to make common law, that law is subject to alteration by Congress. This principle finds expression in the first sentence of the Constitution: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."


Federal criminal common law

In the Virginia Senate debate over ratification of the Bill of Rights, Senator George Mason objected to the words "Congress shall make no law" in the
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, on the grounds that "arbitrary decisions of judges" might violate those same rights. However, the U.S. Supreme Court stated in the 1812 case of ''
United States v. Hudson ''United States v. Hudson and Goodwin'', 11 U.S. (7 Cranch) 32 (1812), was a case in which the United States Supreme Court held that Congress must first enact a constitutional law criminalizing an activity, attach a penalty, and give the federal co ...
'' that there could be no federal criminal common law.Bogen, David.
"The Origins of Freedom of Speech and Press"
'' Maryland Law Review'', p. 438 n. 46.


Federal practice litigation

All fifty states have both state and federal courts. Federal courts have jurisdiction over matters of federal concern, meaning federal law and in particular federal law that pre-empts state law when an issue is within the federal government’s exclusive domain. The other type of jurisdiction conferred upon federal courts is known as diversity jurisdiction and it exists where the amount in controversy is greater than $75,000.00 and no defendant is a citizen of the same state as any of the plaintiffs in the case (complete diversity).


References

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