Federal Common Law, Political Legitimacy, and the Interpretive Process: An Institutionalist Perspective
![handle is hein.journals/illlr83 and id is 777 raw text is: Copyright 1989 by Martin H. Redish Printed in U.S.A.
Vol. 83, No. 4
LEGAL THEORY
FEDERAL COMMON LAW, POLITICAL
LEGITIMACY, AND THE INTERPRETIVE
PROCESS: AN INSTITUTIONALIST
PERSPECTIVE*
Martin H. Redish**
I. INTRODUCTION: FEDERAL COMMON LAW AS A FUNCTION OF
THE DEMOCRATIC PROCESS
The Supreme Court, in Erie Railroad Co. v. Tompkins,I rejected the
authority of the federal courts to develop so-called general federal com-
mon law. Nevertheless, the Court continues to fashion discrete areas of
purely judge-made substantive federal law to this very day.2 The Court
has developed the concept of federal common law while largely ignoring
* Copyright 1989 by Martin H. Redish. Portions of this article will appear in Professor
Redish's forthcoming book, THE FEDERAL COURTS IN THE POLITICAL ORDER: JUDICIAL
JURISDICTION AND AMERICAN POLITICAL THEORY, to be published by Carolina Academic Press.
The author would like to thank Ronald Allen, Robert Bennett, Richard Fallon, Gary Lawson,
Larry Marshall, William Marshall, Gene Nichol, and Stephen Presser for their valuable comments
on an earlier draft. He would also like to thank Elizabeth Cisar and Michael Warner of the class of
1991 at Northwestern University School of Law for their valuable research assistance.
** Professor of Law, Northwestern University. A.B. 1967, University of Pennsylvania; J.D.
1970, Harvard University.
1 304 U.S. 64 (1938).
2 See, eg., West Virginia v. United States, 479 U.S. 305 (1987) (federal proprietary interests);
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) (control of interstate pollution); Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398 (1964) (private party commercial case involving foreign relations
implications); Kossick v. United Fruit Co., 365 U.S. 731 (1961) (admiralty case); Hinderlider v. La
Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938) (interstate dispute); see also Redish,
Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and
ConstitutionalRights, 36 UCLA L. REv. 329, 342-67 (1988) (judge-made law of abstention) [herein-
after Redish, A Comment on Federal Jurisdiction]; Redish, Abstention, Separation of Powers, and the
Limits of the Judicial Function, 94 YALE L.J. 71 (1984) (same).
With limited exception (see discussion infra at 138-41), this Article will not focus on specific
doctrinal elements of federal common law. Its emphasis, rather, is on the place of federal common
law as a generic doctrine within the American political and constitutional framework. For a discus-
sion of the specific legal doctrines, see M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE
ALLOCATION OF JUDICIAL POWER, 85-107 (1980) [hereinafter M. REDISH, FEDERAL JURISDIC-
TION: TENSIONS].](ViewImageLocal?handle=hein.journals/illlr83&div=32&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Federal Common Law, Political Legitimacy, and the Interpretive Process: An Institutionalist Perspective
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most