The Lawmaking Power of the Federal Courts

Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)

Kramer argues that federal court lawmaking power is a useful thing, and thus that it should be permitted to the extent that it can be grounded in some statute already passed by Congress.

How is this any different from reality? As long as we understand interpretation of statutes as lawmaking, courts already make law grounded in statutes. It isn't clear what conception of common law Kramer has in mind to allow the courts to make.

Furthermore, is this even a limit that needs to be created? Doesn't limited federal jurisdiction mean that courts have common law power limited to federal statutes? That is, federal courts can already only hear cases based on established federal causes of action, which must be statutory (or Constitutional). So how can a court even have the opportunity to violate this limit?

Kramer notes that one value of separation of powers is that by establishing clear lines of authority, the branches won't waste time and resources "bickering about who is authorized to do what." (266) This seems rather Amero-centric, in that it takes the current system and can imagine no other. A competition-oriented system, on the other hand, doesn't seem unfeasible -- the lines would be drawn dynamically, based on which branches showed the ability to exercise the power best, via maximal efficiency, fairness, etc. Furthermore, American government includes plenty of overlap where "bickering" takes place, e.g. antitrust enforcement, where the FTC and the DOJ overlap quite a bit.

Kramer claims that judicial lawmaking is unavoidable because legislatures cannot anticipate every future use of a statute, i.e. interpretation is lawmaking. But isn't this only true where precedential value is given to prior interpretations? In a pure code system, where judges are tasked with reading the statute de novo for every case, isn't interpretation not actually lawmaking in quite the same sense? That is, the judge certainly makes a law in the sense of a lower-order norm, a concrete norm, but they make no higher, more general norms that later courts will follow, i.e. they make no law that is analogous to the law as it exists in the Code.

"As part of the federal government, any limits on federal power presumably bind the federal courts." (274)

Based on this view of common lawmaking power only upon federal statutes, how do we evaluate Arbaugh? Doesn't saying that the courts do have jurisdiction over cases not regulated by Congress give permission for the courts to make law in an area in which Congress has not "take[n] the first step"? (288) Congress has decided not to regulate small employers, has not taken the first step. The court decides to step in after all. Thus perhaps the federal courts' lawmaking power is broader than Kramer's conception.

References

Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761 (1989)

Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 883 (1986)

Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805 (1989)

Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (1991)

Citing references

George Rutherglen, Reconstructing Erie: A Comment On The Perils of Legal Positivism, 10 Const. Comment 285 (1993)

Lenaerts, Koen; Gutman, Kathleen, Federal Common Law in the European Union: A Comparative Perspective from the United States, 54 Am. J. Comp. L. 1 (2006)

Idleman, Scott C., The Emergence of Jurisdictional Resequencing in the Federal Courts 87 Cornell L. Rev. 1 (2001)