Article III Lawmaking

70 Pages Posted: 28 Apr 2022 Last revised: 31 Jan 2023

See all articles by Micah Quigley

Micah Quigley

Stanford Constitutional Law Center

Date Written: February 10, 2022


On the usual view, federal common law is judge-made by definition. Commentators and courts, of course, have long recognized the tension between judicial lawmaking and the Constitution’s scheme of separated powers. That concern is part of why federal common law governs only a few special areas. Yet within those areas, federal judges can and should act as lawmakers. Or so the story goes.

The Constitution says otherwise. Article III endows the judiciary with only the “judicial Power.” Historical evidence strongly suggests this phrase’s original meaning included no power to make law—not even common law. So if federal courts are to abide by the Constitution’s original meaning, they must quit making common law and start finding it instead.

If that is so, the courts need a lawfinding method. This Article—by looking to ancient principles of English law—provides one. Traditionally, common-law rules formed a web of continuous law; they enjoyed a measure of acceptance among the people; and they accommodated themselves to the nation’s extra-legal customs. Today’s federal courts can find law by identifying and applying rules that bear those same characteristics. Inversely, when courts fail to do so, they are likely attempting to make law.

This Article’s thesis and its lawfinding method have implications for the Supreme Court. The Court, its Justices, and its doctrines sometimes operate on the assumption that judges can make common law. That this assumption usually goes unspoken does not make it constitutionally licit. Accordingly, recognizing the need for lawfinding may help clarify a variety of (sometimes-surprising) doctrinal areas—from admiralty, to habeas corpus, to nondelegation, and more.

Keywords: Federal Common Law, Originalism, Separation of Powers, Legal History

Suggested Citation

Quigley, Micah, Article III Lawmaking (February 10, 2022). 30 Geo. Mason L. Rev. 279 (2022), Available at SSRN:

Micah Quigley (Contact Author)

Stanford Constitutional Law Center ( email )

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