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Procedural Common Law


Amy Coney Barrett


Notre Dame Law School


Virginia Law Review, June 2008
Notre Dame Legal Studies Paper No. 07-44

Abstract:     
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.

This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the enclave theory advanced in the context of substantive common law: the constitutional structure preempts the state's ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III's grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.

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Date posted: September 15, 2007 ; Last revised: May 27, 2008

Suggested Citation

Barrett, Amy Coney, Procedural Common Law. Virginia Law Review, June 2008; Notre Dame Legal Studies Paper No. 07-44. Available at SSRN: http://ssrn.com/abstract=1014661

Contact Information

Amy Coney Barrett (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
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