Lawmaking by federal courts has been a matter of controversy since the early days of the Republic. In the last forty years, the debate has fallen into roughly two periods, with Roe v. Wade marking the dividing line. During what might be called the "legal process" era of the 1950's and 1960's, scholarly energy was focused on Erie Railroad v. Tompkins and what was then called the "new federal common law." To be sure, important work on judicial review was also done in those years, particularly in the wake of the Supreme Court's dramatic decision in Brown v. Board of Education, which outlawed racial segregation in public schooling. On the whole, however, it is safe to say that the legal process era gave more attention to dissecting Erie and its implications for federalism than to reconciling Brown with our commitment to democratic principles.
The situation is quite different today. Federal judicial lawmaking still commands an important place on the academic agenda, but the focus of attention has turned almost exclusively to lawmaking through judicial review, and in particular to what is variously called "noninterpretive" or "nonoriginalist" judicial review – decisions (like Brown and Roe) that rest on principles not specifically intended by the framers of the Constitution. Writing about federal common law has slowed to a mere trickle. Indeed, there is a tendency to dismiss questions about the legitimacy of federal common law as inconsequential.
Despite the difference in the focuses of these two periods, they are alike in at least one respect. For both the legal-process school and modern constitutional theorists, federal common law and judicial review have been treated as presenting wholly separate issues. Generally speaking, federal common law has been perceived as raising issues of federalism and separation of powers; judicial review – especially nonoriginalist judicial review – has been perceived as raising questions about the limits of textual interpretation and our fidelity to democratic ideals.
In this article, I will attempt to break down the implicit barrier that exists in the commentary on these two forms of federal judicial lawmaking. My objective in doing so is twofold. First, I would like to inject into traditional thinking about federal common law some of the insights developed in the recent literature on nonoriginalist judicial review. Second, I would like to turn the analysis around and ask whether some of the questions that arise in the field of constitutional law – in particular the legitimacy of nonoriginalist judicial review – can profitably be analyzed as issues of federal common law.
Thomas W. Merrill,
The Common Law Powers of Federal Courts,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/371