Statutes in Common Law Courts

63 Pages Posted: 19 Mar 2012 Last revised: 26 Feb 2013

Date Written: February 25, 2013


The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.

This Article aspires to help theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. In turn, it suggests an interpretive method that defies both orthodox textualism and purposivism in that it may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of purpose or equity. Such a model accounts for state court practice at the intersection of statutes and common law that recent work on state court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts at the intersection of statutes and pockets of federal common law.

The framework this Article constructs to approach the common law question can also help organize the fledgling field of state–federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor — an advance that can aid state and federal jurisprudence alike.

Keywords: common law, statutory interpretation, comparative statutory interpretation, intersystemic interpretation, state courts, federal courts

Suggested Citation

Pojanowski, Jeffrey A., Statutes in Common Law Courts (February 25, 2013). 91 Texas Law Review 479 (2013), Notre Dame Legal Studies Paper No. 12-55, Available at SSRN: or

Jeffrey A. Pojanowski (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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