The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes

Abstract

We do not have an Erie for the "Age of Statutes." The Erie that we have addresses a world in which the common law dominated and in which federal courts could go ahout their daily work hy recourse to state-court-created doctrine,^ usually without creating "federal common law." Those understandings do not fit an era in which federally made statutory law dominates the legal landscape and the primary role of federal courts is to interpret it. But the creation of federal common law remains discouraged, thanks to Erie's continuing vitality and the durahility of the notion that Erie requires federal common law making to he "limited" and "restricted." As a result, federal courts have spent the last century engaged in an under-the-radar enterprise of fashioning and appl5dng what aree arguably hundreds of federal common law doctrines to questions of federal statutory interpretation, without acknowledging that they are doing so and without explaining how their actions fit into the Erie paradigm.