Editing Common law (section)

==== United States federal courts (1789 and 1938) ====
{{see|Federal common law}}
[[File:Uscatitle11.jpg|thumb|USCA: some annotated volumes of the [[United States Code|official compilation]] and codification of federal statutes.]]

After ''[[Erie v. Tompkins]]'', 304 U.S. 64, 78 (1938) overruled [[Joseph Storey]]'s decision in ''[[Swift v. Tyson]]'', the [[federal common law]] was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law.<ref>''Erie R. Co. v. Tompkins'', 304 U.S. 64, 78 (1938) ("There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.").</ref>
Later courts have limited ''Erie'' slightly, to create a few situations where [[United States federal courts]] are permitted to create [[federal common law]] rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government.{{efn|''See, e.g.'', ''[[Clearfield Trust Co. v. United States]]'', {{ussc|318|363|1943}} (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case [[negotiable instrument]]s backed by the federal government); ''[[International News Service v. Associated Press]]'', 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding)}} Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.<ref>''[[City of Boerne v. Flores]]'', 521 U.S. 507 (1997) (invalidating the [[Religious Freedom Restoration Act]], in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); ''[[Milwaukee v. Illinois]]'', 451 U.S. 304 (1981)</ref>

In ''Swift'', the [[United States Supreme Court]] had held that federal courts hearing cases brought under their [[diversity jurisdiction]] (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. ''Erie'' overruled ''Swift v. Tyson'', and instead held that federal courts exercising diversity jurisdiction had to use all of the same [[substantive law]] as the courts of the states in which they were located. As the ''Erie'' Court put it, there is no "general federal common law".

Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.{{efn|But see ''National Basketball Association v. Motorola, Inc.'', 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of ''INS'' "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law)}} Outside diversity jurisdiction and when there is no federal statute,{{efn|In the words of Justice [[Robert H. Jackson]]: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."<ref>D'Oench, Duhme & Co. v. FDIC, 315 US 447, 472 (1942), Jackson, J., concurring. Cited in Bradley, Curtis A. ''International Law in the U.S. Legal System.'' United Kingdom, Oxford University Press, 2015, 157</ref>}} post-Erie federal courts have continued to create causes of action.<ref>{{cite book |title=Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation |date=2021 |publisher=Oxford University Press|page=134}}</ref> Justice [[Lewis F. Powell Jr.|Lewis Powell]] strongly objected to this practice in an influential dissent for the case ''[[Cannon v. University of Chicago]]''.<ref name=popkin>{{cite book |last1=Popkin |first1=William D. |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=254 |quote=There is an old principle of law that every right has a remedy, which comes from an age when statutes often did little more than identify a legal wrong, leaving it to the common law to supply a remedy. But the courts extended this approach to infer a private cause of action even when the statute already provided specific (often administrative) remedies. The Court has recently retreated from an expansive inference of private remedies, first adopting a [[Cause of action#Statutory causes of action|four part test]] which imposed some limits on inferring a private cause of action, and then shifting to legislative intent test...Justice Lewis Powell put it most forthrightly in his dissent in ''Cannon v. University of Chicago'' where he stated that the Article III judicial power did not include the power to imply private causes of action from silent statutes.}}</ref>