Bulletin n. 1/2015
June 2015
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Caleb Nelson
    The Legitimacy Of (Some) Federal Common Law
    in Virginia Law Review , vol. 101, issue 1 ,  2015 ,  1-64
    On topics that come within the reach of the states’ lawmaking powers, modern federal judges have no doubts about the legal status of the common law. With respect to such topics, the unwritten law in force in any particular state has long been regarded as part of that state’s law. Ever since Erie Railroad Co. v. Tompkins, moreover, federal courts have followed the settled precedents of each state’s highest court about the content of the state’s unwritten law. On topics that lie beyond the reach of state law, however, federal courts are less confident about the role of unwritten law. To be sure, in an opinion issued on the same day as Erie, the U.S. Supreme Court applied what it called “federal common law” to such a topic, and that practice has continued; in various contexts, modern courts recognize legal principles that are said to have the status of federal law but that have not been codified in any written enactment. Still, even Justice Douglas—who wrote some of the most expansive opinions in this vein—observed that “[t]he instances where we have created federal common law are few and restricted.” Subsequent Courts have agreed that federal common law exists only in “limited areas,” but they have not specified exactly how to identify those areas.
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