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153 U. Pa. L. Rev. 825 (2004-2005)


The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. A common premise of such theories - that courts make federal common law for the kinds of forward-looking policy reasons that would move Congress to enact a statute - largely accounts for the inadequacy. The Article proceeds to provide an account of the making of federal common law by state courts that considers historical practice, the constitutional structure, and certain normative claims about the way in which courts can and ought to make law. It concludes that state courts, when it is necessary to make federal common law in order to enforce existing law, are justified in doing so not as a deputy legislature, but as the result of attempting to best discern and apply existing principles of federal law. Finally, the Article identifies implications of this analysis for the operation of federal common law in federal courts. federal courts, state courts, federal common law, Supremacy Clause



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