Academic journal article Harvard Law Review

An Objection to Sosa - and to the New Federal Common Law

Academic journal article Harvard Law Review

An Objection to Sosa - and to the New Federal Common Law

Article excerpt

Legal scholars have frequently derided the absence of a coherent theory of federal common law. (1) As Professor Martha Field has put it, "[b]ecause limits on federal common law are incoherent, individual litigants have the opportunity to change the substantive rules in many situations in which state law has been assumed to govern." (2) Nonetheless, federal courts at the very least have adhered to a standard taxonomy of when such judicial lawmaking is appropriate: federal common law can arise both in "those [cases] in which a federal rule of decision is 'necessary to protect uniquely federal interests,' and [in those cases] in which Congress has given the courts the power to develop substantive law." (3) The Supreme Court has subdivided the former category into "rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." (4) Into the latter category the Court has placed a variety of important national laws that fail to include either substantive rules necessary for their enforcement (5) or express causes of action. (6)

In Sosa v. Alvarez-Machain, (7) a 2004 case concerning the scope of the Alien Tort Statute (ATS), (8) the Court expanded federal common law to include a narrow set of eighteenth-century international law claims, such as piracy, as well as claims under modern customary international law (CIL) (9) with at least as "definite content and acceptance among civilized nations" as those eighteenth-century norms. (10) In doing so, the Court conceded that the ATS only grants federal jurisdiction over international law torts and thus that the first Congress did not create, explicitly or implicitly, a right of action under the statute. (11) In a similar vein, the Court hinted that CIL claims brought under the ATS might fall into the special federal interest "enclave" of "our relations with foreign nations" but failed to explain why, if that is the case, any international law norm is not sufficient to invoke general federal question jurisdiction under 28 U.S.C. [section] 1331. (12)

This Note's ambition is modest: to demonstrate that Sosa's common law is inconsistent with the traditional taxonomy of federal common law. It first explains the Erie-based justification for the standard taxonomy. It then reviews the legal developments and doctrinal tensions that gave rise to Sosa. Turning to the decision itself, this Note shows how Sosa is the first time the Court has unabashedly recognized federal common law that does not fall in either of the categories. Finally, this Note considers whether a footnote in Banco Nacional de Cuba v. Sabbatino (13) undermines this conclusion.

I. THE TEXAS INDUSTRIES TAXONOMY

A. Erie and Sovereign Authority

As all but the least attentive first year law students know, Erie Railroad v. Tompkins (14) held that in diversity cases federal courts must apply state law. (15) In doing so, it discredited the proposition that there exists a "general common law" that federal courts can apply. (16) This marked a fundamental and momentous shift in the understanding of federal law. Before Erie, "[t]he underlying premise was that the general law was not attached to any particular sovereign; rather, it existed by common practice and consent among a number of sovereigns." (17) As Justice Story wrote in Swift v. Tyson, (18) the case that Erie overruled, federal courts were not bound by state court resolutions of "questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, ... what is the just rule furnished by the principles of commercial law to govern the case." (19)

Justice Brandeis's opinion in Erie derided Story's nineteenth-century legal worldview as "rest[ing] upon the assumption that there is a transcendental body of law" that all courts attempt to divine in deciding cases. …

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