Friday, January 11, 2013
Erieblogging: Day Eleven
Assume that a federal court has the power to make federal common law that preempts applicable state law. It can do three things with this power: a) exercise it and create an independent federal common law rule, b) refrain from exercising it, allowing state law to apply of its own force, or c) exercise it and create a federal common law rule that incorporates the state law rule. There must be a difference between options b) and c), right?
For example, when a federal statute lacks a limitations period and a federal court borrows a limitations period for it from an analogous state statute of limitations, it is incorporating state law into a federal common law rule, not letting state law apply of its own force. On the other hand, if the federal court in Erie actually had the power to create a federal common law rule, it refrained from exercising that power. It did not incorporate Pennsylvania law into a federal common law rule. Otherwise the law applied in Erie would have been federal common law, not Pennsylvania law, even if the federal court decided exactly as the Pennsylvania state court would (the possibility that the state supreme court might be followed perfectly is, in part, what separates today's question from yesterday's). Federal courts’ power to create federal common law surely does not, like Midas’s touch, turn every state law rule they use into federal law. But if there is a difference between options b) and c), how do we tell what the difference is? When does state law apply of its own force and when is it incorporated into federal common law?
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