Fashioning a General Common Law for Employment in an Age of Statutes

63 Pages Posted: 19 Oct 2014 Last revised: 29 Oct 2014

See all articles by Michael Harper

Michael Harper

Boston University - School of Law

Date Written: October 17, 2014


In the current post-Erie age of statutes the Supreme Court continues to have potential influence over the development of a “general” common law used to decide recurring issues governed by state law. This influence, which has drawn little commentary, derives from the Court’s authority to consider analogous issues when filling gaps in federal statutes, sometimes through express reliance on general common law. The influence is through the power to persuade, like that of the federal judiciary in its general common lawmaking age of Swift, rather than through the power to command, like that of the federal judiciary in the formulation of the specialized federal common law of the post-Erie era.

The Court’s post-Erie role in general common law making has been evident recently in a series of decisions interpreting federal employment statutes. In those decisions the Court has relied in part on common law as formulated in the Restatement Second of Agency, but also has modified that formulation in ways that could enhance the common law applied by state courts. The American Law Institute in turn has considered and in part relied upon the Court’s participation in the common law making process in the production of its Restatement of Employment Law, which will be granted final approval in May, 2014. By using examples from the Court’s recent employment law decisions, this article highlights how the Court can influence common law through its delegated authority to make law through statutory interpretation.

Keywords: federal common law, employment law, Restatement of Employment Law, general common law

Suggested Citation

Harper, Michael Conrad, Fashioning a General Common Law for Employment in an Age of Statutes (October 17, 2014). Boston Univ. School of Law, Public Law Research Paper No. 14-64, Available at SSRN: or

Michael Conrad Harper (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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