The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation. The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of common law statutes, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under them. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today—i.e., rules that jurisdictions generally have in common. To determine, for example, whether a state officer is entitled to immunity under § 1983, a court should ask whether American courts generally extend immunity to officials accused of tortious conduct in similar circumstances.

Existing caselaw and legal scholarship provide two rivals to this proposal. According to one rival, common law statutes constitute delegations of substantially unrestrained lawmaking power to courts. They thus empower judges to create new legal rules in a policy-driven manner. According to the other rival, common law statutes incorporate the common law rules that prevailed at the time of their enactment. Judges should therefore decide cases by applying historical common law rules.

This Article’s proposal is superior to its rivals for several reasons. It represents a more conventional and more sensible understanding of the relationship between courts and unwritten law and thus more likely reflects Congress’s intent in enacting each common law statute. It strikes a better balance between the law’s needs for stability and flexibility. And it’s more responsive to democratic preferences. After anticipating several objections, the Article concludes by illustrating some of the model’s implications for two important common law statutes—§ 1983 and the Sherman Act.



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