Preemption and federal common law

Notre Dame Law Review

Volumn 83, Issue 4, 2008, Pages 1639-1679

  Young, Ernest A ^a  

^a Duke Law School ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 50949103550     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (197)

1. See Richard H. Fallen, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L. REV. 953, 956 (1994) (offering "a qualified defense against the charge that Federal Courts is an intellectually benighted backwater"); Judith Resnik, Rereading "TheFederal Courts": Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 VAND. L. REV. 1021, 1054 (1994) (concluding that the field "is overflowing with possibilities," but only "once we agree not to see the world with the vision provided only by the official fathers"); see also Ann Althouse, Late Night Confessions in the Hart and Wechsler Hotel, 47 VAND. L. REV. 993, 1003-05 (1994) (sounding pretty depressed about the whole thing). Professor Fallon's contribution suggested that the field is ripe for "oedipal rebellion," Fallen, supra, at 955, but I for one have never seen the point of such a response. I like my parents.
2. See Clark, Separation of Powers, supra note *.
3. See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245 (1996) [hereinafter Clark, Federal Common Law].
4. 304 U.S. 64 (1938).
5. Id. at 78.
6. See generally Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 405 (1964) (describing and endorsing this development early on).
7. 318 U.S. 363, 366 (1943).
8. See Clark, Federal Common Law, supra note 3, at 1361-75; see also Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 COLUM. L. REV. 1024, 1031 (1967) (identifying "areas that are federalized by force of the Constitution itself").
9. 440 U.S. 715 (1979).
10. See id. at 728-29.
11. See, e.g., Atherton v. FDIC, 519 U.S. 213, 217-26 (1997).
12. See Boyle v. United Techs. Corp., 487 U.S. 500, 507 n.3 (1988).
13. See Clark, Federal Common Law, supra note 3, at 1251-52.
14. See generally RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 693-98 (5th ed. 2003) [hereinafter HART & WECHSLER] (discussing interpretive theories of federal common law) ; Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 7-12 (1985) (suggesting that general constitutional and statutory principles combine to create the standard by which to assess the validity of the federal common law).
15. FED. R. EVID. 501. The rule goes on to forbid federal common lawmaking, however, "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law provides the rule of decision." Id.
16. See, e.g., Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978) ("Congress... did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition."),
17. See Act of June 25, 1948, ch. 646, § 1333, 62 Stat. 869, 931 (codified as amended at 28 U.S.C. § 1333 (2000)); S. Pac. Co. v, Jensen, 244 U.S. 205, 215 (1917) ("[I]n the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction."). See generally David W. Robertson, Displacement of State Law by Federal Maritime Law, 26 J. MAR. L. & COM. 325 (1995) (surveying the field). I argue in Part V that this treatment is incorrect. See infra notes 158-82 and accompanying text.
18. See, e.g., Carey v. Piphus, 435 U.S. 247, 264-67 (1978) (fashioning a federal common law rule to govern the measure of damages in an action under 42 U.S.C. § 1983 for deprivation of procedural due process rights). These remedial gaps are often filled, however, by looking to state law. See, e.g., Robertson v. Wegmann, 436 U.S. 584, 590-93 (1978) (looking to state law to determine the survival of a § 1983 action). See generally HART & WECHSLER, supra note 14, at 758-66 (discussing the statutory gap-filling genre of federal common law).
19. D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 470 (1942) (Jackson, J., concurring). Justice Jackson went on to claim that this authority "is apparent from the terms of the Constitution itself," id., but one searches those terms in vain for any explicit grant of lawmaking authority to courts.
20. See Merrill, supra note 14, at 36-39 (discussing "preemptive lawmaking").
21. See, e.g., id. at 55 n.238. The leading example of the federal common law of foreign relations is Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964), which fashioned a federal common law "act of state" doctrine, limiting judicial review of claims that foreign governments have breached international law, see id. at 427-37. While Sabbatino is often read as recognizing a very broad lawmaking power in foreign affairs cases, see LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 139 (2d ed. 1996) (reading Sabbatino as recognizing "an independent power for the federal courts to make [foreign affairs] law on their own authority"), I argue in Part V that it is better cited for the considerably more modest proposition that courts may fashion choice of law rules that restrict their own exercise of judicial review, much like rules of prudential standing, in deference to the political branches, see infra notes 193-98 and accompanying text; see also Ernest A. Young, Sorting Out the Debate over Customary International Law, 42 VA. J, INT'L L. 365, 440-45 (2002) [hereinafter Young, Customary International Law].
22. See, e.g., Joel K. Goldstein, The Life and Times of Wilburn Boat: A Critical Guide (pt. 2), 28 J. MAR. L. & COM. 555, 556 (1997).
23. Clearfield Trust Co. v. United States, 318 U.S. 363, 364 (1943).
24. See id. at 366-67.
25. Id.
26. See id. at 366 (citing the Federal Emergency Relief Act of 1935, which authorized the WPA project upon which Barner was employed).
27. The presumption under the Federal Tort Claims Act, ch. 753, 60 Stat. 842 (1946) (codified as amended in scattered sections of 28 U.S.C.), for example, is that tort disputes arising out of federal officers' conduct will be governed by state law, see 28 U.S.C. § 1364(b)(l) (2000), notwithstanding that the officers in question exercise authority under federal statutes, see id. § 2674.
28. Clearfield, 318 U.S. at 367.
29. Id. (citing Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)). For an account of the Swift regime, see generally William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1516-38 (1984).
30. Clearfield, 318 U.S. at 369-70.
31. Id. at 367; see also De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) ("The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law.").
32. Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 886 (1986); see also Friendly, supra note 6, at 410 (extracting these two steps from Clearfield).
33. HART & WECHSLER, supra note 14, at 700.
34. See id. at 700-02.
35. See, e.g., O'Melveny & Myers v. FDIC, 512 U.S. 79, 83-86 (1994); United States v. Yazell, 382 U.S. 341, 352-57 (1966).
36. United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-29 (1979). Erwin Chemerinsky has summarized the test as one in which "the Court balances the need for federal uniformity and for special rules to protect federal interests against the disruption that will come from creating new legal rules." ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 6.2.1, at 371 (5th ed. 2007).
37. Kimbell Foods, 440 U.S. at 730.
38. Atherton v. FDIC, 519 U.S. 213, 218 (1997) (quoting O'Melveny & Myers, 512 U.S. at 87; Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).
39. Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. PA. L. REV. 797, 811 (1957).
40. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 525-39 (1954). Indeed, Professor Hart believed that "[i]t is in this sphere" that the interstitialness of federal law "is most conspicuously revealed." Id. at 525.
41. Kimbell Foods, 440 U.S. at 718.
42. See id. at 726.
43. Id. at 729.
44. Id. (quoting United States v. Standard Oil Co., 332 U.S. 301, 309 (1947)).
45. See id. at 718, 723.
46. Of course, any resemblance between this hypothetical and the actual law of South Carolina would be purely coincidental and, frankly, quite surprising.
47. I put to one side the complications that would arise had the first case not been affirmed by the Supreme Court. For example, if the Fourth Circuit has recognized a federal common law rule governing a particular issue, can that rule be said to "exist" at all in the Fifth or Eleventh Circuits, which have not yet considered the issue? My tentative answer is that this wrinkle should not matter, because the Fifth Circuit's inquiry as to whether the Fourth Circuit's case was rightly decided would be a different decision than a de novo application of Kimbell Foods to the Texas rule.
48. See Atherton v. FDIC, 519 U.S. 213, 218 (1997).
49. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 980-81 (1996) (addressing Congress' ability to delegate rulemaking authority over offer-of-settlement rules to the federal courts). It is true, of course, that a court's creation of a federal common law rule has precedential force in a subsequent case. But that is not to say that the rule itself has prospective force-the precedent simply binds a future court, if confronted with a similar conflict between state law and federal interests, to apply a similar federal common law rule. The prior precedent would be readily distinguishable if no such conflict existed in the subsequent case, even if that case fell within the formal ambit of the federal common law rule announced in the prior decision.
50. See id. at 980 ("To decide an existing dispute framed by contending parties is an activity for which the independence of the judiciary is a very useful qualification; moreover, the public necessity of the decision affords moral legitimacy to the act. On the other hand, to prescribe standards of conduct by which future disputes will be judged is an activity for which the independence of the judiciary from politics is a disqualification wherever a republican form of government abides.").
51. In De Sylva v. Ballentine, 351 U.S. 570 (1956), for example, the Court looked to state law to determine whether "children," as used in the renwal provisions of the Copyright Act, would include an illegitimate child. The Court noted that "[t]his does not mean that a state would be entitled to use the word 'children' in a way entirely strange to those familiar with its ordinary usage, but at least to the extent that there are permissible variations in the ordinary concept of 'children' we deem state law controlling." Id. at 581.
52. Paul Mishkin anticipated the possibility that even where state law might be generally adopted on an issue, it would be possible to reject the rule of a particular state whose doctrine on the specific issue was not entirely consistent with federal objectives, though this might mean that state law was incorporated as to forty-six out of the forty-eight states but not the remaining two. Mishkin, supra note 39, at 806. He noted, for example, that "as to measure of damages for wrongful death under the Federal Tort Claims Act, local law is adopted in all the states except Alabama and Massachusetts." Id. at 806 n.33 (citation omitted) (citing Mass. Bonding & Ins. Co. v. United States, 352 U.S. 128 (1956)).
53. See Clearfield Trust Co. v. United States, 318 U.S. 363, 370 (1943).
54. The United States, after all, is hardly the only entity that must write checks to its employees in at least fifty different jurisdictions. The McDonald's Corporation, for example, seems to muddle through selling Big Macs and paying its employees in fiftyone United States jurisdictions despite not having the benefit of its own set of commercial paper rules. See Mishkin, supra note 39, at 830 (expressing some skepticism of the uniformity argument in Clearfield).
55. Clearfield, 318 U.S. at 367.
56. 487 U.S. 500 (1988).
57. Id. at 507 n.3 (citations omitted) (quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-30 (1979); United States v. Little Lake Misere Land Co., 412 U.S. 580, 594 (1973)).
58. Id.; see also O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) (Scalia, J.) ("The issue ... is whether the California rule of decision is to be applied . . . , and if it M applied it is of only theoretical interest whether the basis for that application is California's own sovereign power or federal adoption of California's disposition.").
59. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).
60. Id. at 508.
61. See, e.g., Comm'r v. Estate of Bosch, 387 U.S. 456, 465 (1967) (reading "the rule of Erie" to require that "state law as announced by the highest court of the State is to be followed").
62. See 28 U.S.C. § 1257 (2000) (limiting appeals to the United States Supreme Court from the state courts to those involving a question of federal law). Appeals to the United States Supreme Court from the federal circuit courts are not so limited, see id. § 1254, but because the United States Supreme Court cannot definitively settle questions of state law, see U.S. CONST. art. III, § 2, cl. 1, it does not usually consider such questions certworthy.
63. Or, more precisely, not simply the state rule that the choice of law rules of the state in which the court sits would prescribe. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941) (holding that a federal court sitting in diversity must apply the choice of law rules of the state in which it sits).
64. See Boyle v. United Techs. Corp., 487 U.S. 500, 502-03 (1988).
65. Id. at 512.
66. See id. at 506-07.
67. See id. at 507-11.
68. See Federal Tort Claims Act, ch. 753, § 421, 60 Stat. 842, 845 (1946) (codified as amended at 28 U.S.C. § 2680(a) (2000 & Supp. V 2005)) (excepting from the United States' general consent to suit in tort cases "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused").
69. See Boyle, 487 U.S. at 511-12.
70. I do not wish to concede that this extension of Ckarfwld was correct, but it is beside the point of this Essay.
71. See Mishkin, supra note 39, at 803 ("[T]he considerations which lead to selection of local law in one context may vary greatly from those operative in other circumstances; in any given situation, the extent of incorporation and the techniques for ascertaining what local law is must be determined by the particular considerations which established the advisability of adopting that law.").
72. See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 102-03 (1962) (holding that federal common law governs suits falling within the scope of section 301 of the Labor Management Relations Act of 1947 even when those suits are brought in state court).
73. Cf. Murdock v. City of Memphis, 87 U.S. 590, 635-38 (1875) (holding that the Supreme Court cannot ordinarily review questions of state law on appeal from the state courts).
74. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001).
75. See id. at 500.
76. Id. at 508.
77. U.S. CONST. art. VI, cl. 2.
78. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International IMW as Federal Common IMW: A Critique of the Modem Position, 110 HARV. L. REV. 815, 823 (1997) ("[G]eneral common law was not part of the 'Laws of the United States' within the meaning of Articles III and VI of the Constitution ...."); Stewartjay, Origins of Federal Common Law (pt. 2), 133 U. PA. L. REV. 1231, 1275 (1985) ("[T]he supremacy clause of the Constitution . . . was not designed to apply to common-law cases . . . .").
79. See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 137-42 (1996) (Souter, J., dissenting) (discussing founding era debates about reception of the English common law).
80. See United States v. Hudson (Hudson & Goodwinn), 11 U.S. (7 Cranch) 32, 34 (1812) (rejecting the notion of federal common law crimes); see also United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 416 (1816) (confirming the holding in Hudson & Goodwin); HART & WECHSLER, supra note 14, at 686-89.
81. James Madison warned, for example, that according broad common law powers to the federal courts "would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." James Madison, Report on the Resolutions, in 6 THE WRITINGS OF JAMES MADISON 341, 381 (Gaillard Hunt ed., 1906); see also Stewart Jay, Origins of Federal Common Law (pt. 1), 133 U. PA. L. REV. 1003, 1111 (1985) ("Federal common law was to Republicans a symbol of a consolidated national government, the achievement of which seemed the evident goal of scheming Federalists.").
82. 41 U.S. (16 Pet.) 1 (1842).
83. See id. at 18-20.
84. See Fletcher, supra note 29, at 1517-25 (describing the operation of general law under Swift); see also TONY FREVER, HARMONY AND DISSONANCE 17-100 (1981) (same).
85. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981) ("Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.").
86. Clark, Separation of Powers, supra note *, at 1452.
87. See, e.g., Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 547-52 (1954).
88. See Clark, Separation of Powers, supra note *, at 1339-42.
89. See Mishkin, supra note 39, at 800 n.12 ("Although it might seem that vis-a-vis the states it would make no difference which agency of the central government exercised the power to declare supervening law, this ignores the political structure which gives the states per se very significant power in the Congress-to a degree hardly paralleled in the judicial structure." (citing Wechsler, supra note 87)).
90. Clark, Federal Common Law, supra note 3, at 1262 n.69.
91. See Peter L. Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. 1567, 1571-73 (2008); see also R. Craig Green, Repressing Erie 's Myth, 96 CAL. L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=! 009992 (arguing that Erie had little to do with constitutional federalism or separation of powers). I can address Professor Green's argument, which purports to demonstrate that such interpreters as Henry Friendly, Paul Mishkin, John Hart Ely, and Charles Alan Wright were all deluded about Erie's significance, see Green, supra (manuscript at 2-3, 22 n.96), only in passing here.
92. See Strauss, supra note 91, at 1571-73.
93. See Green, supra note 91 (manuscript at 23-30). But see Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) ("[N]or does the existence of congressional authority under Art. I mean that federal courts are free to develop a common law to govern those areas until Congress acts.").
94. For the widespread view that Erie was, in fact, firmly grounded in separation of powers concerns about judicial lawmaking, see, for example, Merrill, supra note 14, at 15-19; Paul J. Mishkin, Some Further Last Words on Ene-The Thread, 87 HARV. L. REV. 1682, 1683 (1974); J. Harvie Wilkinson III, Our Structural Constitution, 104 COLUM. L. REV. 1687, 1689 (2004). For Professor Clark's treatment, see Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459, 1478-93 (1997); Clark, Federal Common Law, supra note 3, at 1256-64; Clark, Separation of Powers, supra note *, at 1412-19.
95. See Strauss, supra note 91, at 1571.
96. See Houston, E. & W. Tex. Ry. Co. v. United States (The Shreveport Rate Cases), 234 U.S. 342, 351-52 (1914).
97. It is also hard to square Professor Strauss' reading of Erie with the constitutional text. Article I, Section 8 grants powers to Congress. If, as Strauss seems to think, Article III's judicial power includes lawmaking authority, it is hard to see why that authority would be limited by Article I. The President's lawmaking authority via treaty, for example, has not been similarly construed to be limited by Congress' enumerated powers in Article I. See Missouri v. Holland, 252 U.S. 416, 435 (1920). And, in fact, federal courts have often viewed their own lawmaking powers as distinct from those of Congress. For example, for much of our history federal courts conceived of their lawmaking authority in maritime cases as not resting on the Article I powers of Congress; quite the reverse, Congress' powers were thought to piggyback on the courts' maritime authority. See, e.g., Pan. R.R. Co. v. Johnson, 264 U.S. 375, 386 (1924).
98. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
99. Cf. INS v. Chadha, 462 U.S. 919, 946 (1983) (insisting that the lawmaking procedures in Article I "are integral parts of the constitutional design for the separation of powers").
100. See generally William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1444-48 (2008) (describing additional vetogates created by congressional rules); Elizabeth Garrett, Framework Legislation and Federalism, 83 NOTRE DAME L. REV. 1495, 1498-1504 (2008) (describing the operation and effect of the Unfunded Mandates Reform Act).
101. This is not to deny Carlos Vâzquez's point that inertia also protects established federal regulation from repeal. See Carlos Manuel Vâzquez, The Separation of Powers as a Safeguard of Nationalism, 83 NOTRE DAME L. REV. 1601, 1604-05 (2008). Whether or not inertia protects state autonomy on balance depends on one's starting baseline and assumptions about the most likely direction of federal legislative action. It strikes me as a reasonable assumption that federal legislators will generally act to increase rather than decrease the scope of federal authority. See Garrett, supra note 100, at 1513-15. But see Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 935 (2005). Professor Levinson is right that Congress may often act to decrease its responsibility, see id. at 935-36, but in the present context it seems more likely to do so by delegating to federal agencies, over which it maintains some control, than by devolving authority to the states.
102. For more extensive discussions of preemption by executive agencies and courts from this perspective, see Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. (forthcoming 2008); Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 333-41 (1999) [hereinafter Young, Preemption at Sea].
103. See Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981); Friendly, supra note 6, at 405-21.
104. Clark, Separation of Powers, supra note *, at 1453.
105. Merrill, supra note 14, at 36.
106. See Boyle v. United Techs. Corp., 487 U.S. 500, 515 & n.1 (1988) (Brennan, J., dissenting).
107. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943).
108. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 (1985); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 278 (2000); Wechsler, supra note 87, at 545.
109. See Ernest A. Young, The Rehnquist Court 's Two Federalisms, 83 TEX. L. REV. 1, 132 (2004) ("If we are attempting to enhance the effectiveness of political and inertial impediments to federal lawmaking, then dormant rules . . . ought to be anathema.").
110. Compare, e.g., Fulton Corp. v. Faulkner, 516 U.S. 325, 327 (1996) (Souter, J.) (invalidating a state law under the dormant Commerce Clause), with United States v. Morrison, 529 U.S. 598, 649-50 (2000) (Souter, J., dissenting) (arguing that the Court should not enforce federalism constraints, including the Commerce Clause, because the Constitution "remits them to politics").
111. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 507-08 (1988) (arguing that, because federal common law is made in fields of "unique federal concern," "[t]he conflict with federal policy need not be as sharp as that which must exist for ordinary pre-emption when Congress legislates 'in a field which the States have traditionally occupied'" (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))).
112. See generally Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 4 (1950) (describing the collapse of the Court's effort to define exclusive spheres of federal and state authority); Alpheus Thomas Mason, The Role of the Court, in FEDERALISM 8, 24-25 (Valerie Earle ed., 1968) (observing that "dual federalism" contemplates "two mutually exclusive, reciprocally limiting fields of power-that of the national government and of the States [which] confront each other as equals across a precise constitutional line, defining their respective jurisdictions"). It is important to distinguish "dual federalism" from "dual sovereignty," which often connotes simply the separate and independent existence of the states as autonomous governments. See Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 GEO. WASH. L. REV. 139, 143-44 (2001) [hereinafter Young, Dual Federalism].
113. See Vicki C.Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2232 (1998) ("[W]ithout written guideposts on the content of the enclaves in the face of changing economies and functions of government, the substantive enclave theory is unworkable."); Young, Dual Federalism, supra note 112, at 146-50.
114. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 202 (1996); Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 328 (1973). See generally Young, Preemption at Sea, supra note 102, at 329-33 (identifying a wide range of traditional state interests in maritime cases).
115. See, e.g., Medellin v. Dretke, 544 U.S. 660, 661-62 (2005) (criminal justice); Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 401 (2003) (insurance); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366 (2000) (state government procurement). See generally Young, Dual Federalism, supra note 112, at 177-85 (arguing that "foreign affairs" cannot be maintained as a sphere of uniquely federal interest).
116. See, e.g., Clark, Federal Common Law, supra note 3, at 1361 (stating that "the states arguably lack legislative competence to prescribe binding rules of decision in this context"); Caleb Nelson, The Persistence of General Law, 106 COLUM. L. REV. 503, 507, 509-12 (2006) (speaking of the Clearfield area as one in which "the structure of our federal system is thought to keep state law from applying of its own force").
117. See Jefferson County v. Acker, 527 U.S. 423, 436-37 (1999) (taxes); Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 486-87 (1939) (same); see also Johnson v. Maryland, 254 U.S. 51, 56 (1920) (Of course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment.").
118. See, e.g., Lear, Inc. v. Adkins, 395 U.S. 653, 661-62 (1969) (recognizing that the interpretation of a licensing agreement was "solely a matter of state law"); Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp., 284 F.3d 1323, 1327 (Fed. Cir. 2002) ("[T] he interpretation of contracts for rights under patents is generally governed by state law.").
119. See PETER W. LOW & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 127 (4th ed. 1998) (stating that in the nineteenth century, "except where federal statutes explicitly displaced state law, the law governing the rights and duties of the United States in proprietary transactions was the same state law that would govern the rights and duties of a private party to the same transaction.").
120. See, e.g., Mines v. Davidowitz, 312 U.S. 52, 68 (1941).
121. 17 U.S. (4 Wheat.) 316 (1819).
122. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-33, at 1223 (3d ed. 2000) ("[I]mmunity from 'interference' obviously cannot include 'a general immunity from state law,' including nondiscriminatory taxes of every description, for all federal agents or instrumentalities acting within the scope of their agency or carrying on their functions as federal instruments. Given the interstitial character of federal law, any contrary principle, at least in the matter of regulation even if not in the matter of taxation, would require Congress to undertake the overwhelming burden of having to provide a comprehensive body of rules to govern all of the rights and obligations of all those who act on its behalf, including 'the mode of turning at the corners of streets.'" (quoting Johnson, 254 U.S. at 56)).
123. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 543 (1985); TRIBE, supra note 122, § 6-34, at 1237 (noting the doctrinal difficulties that have plagued the Court's intergovernmental immunity doctrine).
124. See Clark, Federal Common Law, supra note 3, at 1251-52.
125. The Constitution does specifically forbid the States from certain forms of activity, such as creating titles of nobility. See U.S. CONST. art. I, § 10.
126. See generally Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408, 429-35 (2007) (arguing that statutory boundaries largely define the limits of state and national authority under current law).
127. Merrill, supra note 14, at 36 (footnote omitted).
128. See, e.g., Susan Bartlett Foote, Regulatory Vacuums: Federalism, Deregulation, and Judicial Review, 19 U.C. DAVIS L. REV. 113, 117 (1985).
129. See, e.g., Atherton v. FDIC, 519 U.S. 213, 218 (1997); O'Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994).
130. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 504-06 (1988); Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981).
131. See, e.g., U.S. CONST. art. I, § 8.
132. See, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 770-73 (1994) (arguing that the supremacy of federal law does not itself displace state lawmaking authority).
133. At least some Justices, moreover, continue to insist that actual legislative power cannot be delegated at all-at least to administrative agencies. Compare Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) ("Article I, § 1, of the Constitution vests '[a] 11 legislative Powers herein granted ... in a Congress of the United States.' This text permits no delegation of those powers . . . ." (alteration in original)), with id. at 488 (Stevens, J., concurring in part and in the judgment) ("Despite the fact that there is language in our opinions that supports the Court's articulation of our holding, I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is 'legislative power.'" (footnote omitted)). If legislative power cannot be delegated to agencies, it is hard to see why the answer would be different for courts.
134. See supra notes 14-22 and accompanying text; see also Tex. Indus., 451 U.S. at 640 (stating that instances of valid federal common law-making fall "into essentially two categories: those in which a federal rule of decision is 'necessary to protect uniquely federal interests,' and those in which Congress has given the courts the power to develop substantive law" (citations omitted) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964))).
135. See generally Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. (forthcoming 2008) (manuscript at 28-51), available at http://ssrn.com/abstract=l 104823 (questioning this analogy).
136. 47U.S.C. §303 (2000).
137. Id. § 303(r); see also id. § 154(i) ("The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions.").
138. See supra note 15 and accompanying text (discussing Rule 501 of the Federal Rules of Evidence).
139. See Merrill, supra note 14, at 42 ("Express delegation of lawmaking authority to federal courts is rare.").
140. See, e.g., Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 645-46 (1980) (plurality opinion); Nat'l Cable Television Ass'n, Inc. v. United States, 415 U.S. 336, 341-43 (1974).
141. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2332 (2001).
142. See, e.g., Matthew D. McCubbins, Roger G. Noll, & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243, 253-63 (1987) (arguing that legislators exercise control through the design of procedures to be followed by the agency in implementing legislation). See generally Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984) (arguing that under the "fire-alarm oversight" model, Congress has not neglected its oversight responsibilities).
143. See, e.g., Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. (forthcoming 2008) (manuscript at 7, 28-31), available at http://papers.ssrn.com/abstract_id=110 1141. I part company with Professors Galle and Seidenfeld when they say that the opportunities for states to participate in agency proceedings is sufficient to offset fears about agency preemption, compare id. (manuscript at 19-67, 114-17), with Stuart M. Benjamin & Ernest A. Young, Tennis with the Net Down: Administrative Federalism Without Congress 57 DUKE L.J. (forthcoming 2008) (manuscript at 21-37, on file with author), but it seems likely that agency proceedings afford states greater input than judicial proceedings to which states may well not be a party.
144. See Act of Sept. 6, 1966, Pub. L. No. 89-554, § 702, 80 Stat. 378, 392 (codified as amended at 5 U.S.C. § 702 (2000)) (providing a right to judicial review of agency action).
145. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 143 (1990) ("Broad delegations of power to regulatory agencies, questionable in light of the grant of legislative power to Congress in Article I of the Constitution, have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued.") ; Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 469-91 (2003) (developing a series of models based on executive control, participation in agency processes, agency expertise, and agency conformity to statutory commands, that have been used to legitimate agency action).
146. Not even judicial review. The crucial thing about judicial review of agency action under the Administrative Procedure Act (APA) is that it is conducted by an institution other than the one that is exercising delegated power. See 5 U.S.C. § 702 (2000). Moreover, much APA review is for agency conformity with the APA's procedural requirements, see id. § 704, but no similar procedural specifications discipline the exercise of federal common lawmaking power.
147. Merrill, supra note 14, at 42. Professor Merrill does acknowledge, in a footnote, that "executive-branch lawmaking is less in tension with the norms of federalism and electoral accountability than is judicial lawmaking," and he suggests that "the requirement that the area of delegation be circumscribed with reasonable specificity [should] be more restrictive than the test applied in assessing the constitutionality of delegations to the executive branch." Id. at 41 n.182. But the difficulties attendant upon enforcing any principle of nondelegation in the administrative context are likely to plague efforts to tighten the test for judicial delegations, and it is far from clear that even a somewhat tighter ex ante test can compensate for the lack of ex post controls on the exercise of delegated authority.
148. See, e.g., PHILLIP AREEDA, LOUIS KAPLOW & AARON EDLIN, ANTITRUST ANALYSIS 1 164, at 90 (6th ed. 2004) (noting that "[i]t is generally assumed that federal antitrust laws are not intended to preempt the field," and "state law may condemn conduct that would be held lawful under the Sherman Act"). The problem is acute for another important area of supposedly delegated lawmaking-federal common law under the Labor Management Relations Act (LMRA) of 1947, ch. 120, § 301, 61 Stat. 136, 156 (codified as amended at 29 U.S.C. § 185 (200O)). That area is so rife with problems that one scarcely knows where to begin. Federal judicial authority in the field originates with a bare jurisdictional grant, which a majority of the Supreme Court nonetheless found to confer affirmative lawmaking authority in Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456-57 (1957). But see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77-78 (1938) (holding that federal common law-making authority could not be inferred from the constitutional or statutory grant of federal jurisdiction to adjudicate diversity cases). Lincoln Mills' finding of lawmaking authority has then been bootstrapped into a doctrine that, even when plaintiffs rely on state law in formulating claims related to a collective bargaining agreement, the preemptive force of federal law is so great as to create federal question jurisdiction. See Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968); see also Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 CAL. L. REV. 1775, 1812-19 (2007) (criticizing Avco s doctrine of "complete preemption"). In any event, to the extent that federal common law under the LMRA can be justified at all, it is probably best justified not by delegation but by the preemptive effect of the LMRA's substantive policies. See HART & WECHSLER, supra note 14, at 742 (suggesting that "federal common lawmaking in Lincoln Mills [is] best viewed as rooted in the need to carry out the substantive polices of the federal labor laws").
149. See, e.g., Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996) ("We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.").
150. One might say, I suppose, that gap-filling amounts to "interpretation" of the overall federal statutory scheme rather than lawmaking at all. Cf. Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity'?, 78 MICH. L. REV. 311, 332-33 (1980) (denying any distinction between the common law and statutory interpretation).
151. See, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986) (stating that "legislative intent to delegate the law-interpreting function" is "a kind of legal fiction"); Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. CHI. L. REV. 329, 350 n.33 (2007) (book review); see also David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 212-25 (explaining that "Congress so rarely makes its intentions about deference clear").
152. D'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 470 (1942) (Jackson, J., concurring). Justice Jackson added that federal common lawmaking authority "is apparent from the terms of the Constitution itself," id., but there is no such explicit grant of judicial lawmaking authority in the text. Jackson's best example was the Contracts Clause. Noting that "[t]his provision is meaningless unless we know what a contract is," Jackson cited authority "that in applying this clause we are not bound by the state's views as to whether there is a contract." Id. (citing Irving Trust Co. v. Day, 314 U.S. 556 (1942)). But other cases suggest that the existence of a contract in a Contracts Clause case is a question "primarily of state law," Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938); see also HART & WECHSLER, supra note 14, at 528-29. In any event, there is a great deal of difference between having to define a term that appears in the Federal Constitution-e.g., "contract"-and formulating an entire jurisprudence of contracts for cases involving the federal government, as in Clearfield. The "gaps" I have in mind here involve not the interpretation of ambiguous textual terms in statutes or constitutional provisions, but the fashioning of entire rules-e.g., a statute of limitations or measure of damages-where Congress has simply omitted to address the issue.
153. Ku Klux Klan (Civil Rights) Act of 1871, ch. 22, 17 Stat. 13 (codified at 42 U.S.C. § 1983 (200O)); A* 42 U.S.C. § 1988(a) (2000) ("The jurisdiction in civil and criminal matters conferred on the district and circuit courts ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."); see also Robertson v. Wegmann, 436 U.S. 584, 588-93 (1978) (applying § 1988 to adopt state law concerning survivorship of a § 1983 action).
154. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 462 (1975) (recognizing a strong presumption that, where federal statutes fail to provide a statute of limitations for a federal claim, the applicable limitations period will be borrowed from state law).
155. See Robertson, 436 U.S. at 594 (acknowledging this possibility even in suits governed by § 1988).
156. See Hill, supra note 8, at 1068-70.
157. D'Oench, Duhme & Co., 315 U.S. at 472.
158. See, e.g., Preble Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 CAL. L. REV. 661, 718 (1963) ("From the beginning admiralty judges have retained the inventiveness and initiative characteristic of common law courts in private law areas.").
159. 244 U.S. 205 (1917).
160. See id. at 214-15. Federal admiralty judges were so protective of their common law prerogatives that they even struck down attempts by Congress to delegate authority to the states to legislate in the maritime field. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164-65 (1920). Although never explicitly overruled, these cases are of highly questionable authority today, and their main importance is to demonstrate just how far out of step maritime jurisprudence had gotten with the dominant thinking in federal jurisdiction.
161. See, e.g., Hill, supra note 8, at 1034-35; Strauss, supra note 91, at 1569, 1579-88.
162. It is a characteristic feature of admiralty jurisdiction that bad nautical puns are practically de rigueur.
163. This famous clause, incorporated in the first Judiciary Act's grant of admiralty jurisdiction, qualifies the exclusive grant of jurisdiction to the federal courts by "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Act of Sept. 24, 1789, ch. 20, § 9(a), 1 Stat. 73, 77. The current version makes federal jurisdiction in admiralty exclusive "saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1) (2000). The saving to suitors clause effectively confers concurrent jurisdiction over maritime disputes on the state courts, except for in rem cases. See Madruga v. Superior Court, 346 U.S. 556, 560 (1954); DAVID W. ROBERTSON, ADMIRALTY AND FEDERALISM 19 (1970).
164. See, e.g., Am. Dredging Co. v. Miller, 510 U.S. 443, 452 (1994) ("It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence."); Kossick v. United Fruit Co., 365 U.S. 731, 742 (1961) (Frankfurter, J., dissenting) ("[N]o decision in the Court's history has been the progenitor of more lasting dissatisfaction and disharmony within a particular area of the law than . . . Jensen.' (citation omitted)).
165. David P. Currie, Federalism and the Admiralty: "The Devil's Own Mess," 1960 SUP. CT. REV. 158.
166. See, e.g., David W. Robertson, The Applicability of State Law in Maritime Cases After Yamaha Motor Corp. v. Calhoun, 21 TUL. MAR. L.J. 81, 91-96 (1996) (tabulating fifty-three cases decided by the Supreme Court since Jensen and concluding that "none of the traditionally posited patterns is actually reflected in the United States Supreme Court's work"); Michael F. Sturley, Was Preble Stolz Right?, 29 J. MAR. L. & COM. 317, 323 (1998) ("This mess is causing real confusion for the lower courts and the bar."); Young, Preemption at Sea, supra note 102, at 294-306 (surveying the Court's tangled jurisprudence under Jensen).
167. See Young, Preemption at Sea, supra note 102, at 325-28; see also Ernest A. Young, It's Just Water: Toward the Normalization of Admiralty, 35 J. MAR. L. & COM. 469, 485-517 (2004) (considering more recent defenses of federal maritime law); Ernest A. Young, The Last Brooding Omnipresence: Erie Railroad Co. v. Tompkins and the Unconstitutionallity of Preemptive Federal Maritime Law, 43 ST. Louis U. L.J. 1349, 1357-65 (1999) (same). I have argued elsewhere that neither § 1333 nor its parallel provision in Article III should be so construed. See Young, Preemption at Sea, supra note 102. For further discussion, see Clark, Federal Common Law, supra note 3, at 1341-60 (surveying the historical treatment of maritime law and reaching similar conclusions).
168. See Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-41 (1981) ("The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law . . . .").
169. See Clark, Federal Common Law, supra note 3, at 1280-81 (noting that maritime law was a branch of the law of nations); see also GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 1-3, at 6 (2d ed. 1975) (stating that maritime law did not "derive[e] its force from a territorial sovereign"); ROBERTSON, supra note 163, at 138 (acknowledging that "the federal maritime law is in some sense a brooding omnipresence over the sea"); Young, Preemption at Sea, supra note 102, at 318-22 (collecting sources).
170. See Young, Preemption at Sea, supra note 102, at 322-25; supra notes 79-81 and accompanying text.
171. See, e.g., The Lottawanna, 88 U.S. 558, 574-75 (1875) ("[T]he Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention [of the Framers] to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states."); see also Am. Dredging Co. v. Miller, 510 U.S. 443, 466-67 (1994) (Kennedy, J., dissenting) (making a similar argument); Theodore F. Stevens, Erie R.R. v. Tompkins and the Uniform General Maritime Law, 64 HARV. L. REV. 246, 247, 252-57 (1950) (discussing "the evolution of the requirement of a uniform application of the maritime law"); Steven R. Swanson, Federalism, the Admiralty, and Oil Spills, 27 J. MAR. L. & COM. 379, 380 (1996) ("Admiralty jurisdiction was given to the federal courts to insure a uniform application of the law to encourage trade and foster the United States maritime industry's growth."). 172 Similar arguments were made that federal interests in uniform rules to govern interstate commercial cases justified maintaining the Swift regime. See, e.g., R.R. Co. v. Nat'l Bank, 102 U.S. 14, 41-42 (1880) (Clifford, J., concurring); FREYER, supra note 84, at 82-84. Erie rejected these arguments, of course.
172. See, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 36 (1990) (discussing maritime tort law).
173. See 33 U.S.C. § 2718(a) (2000); see also Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 631 (1st Cir. 1994) (discussing this aspect of the Oil Pollution Act).
174. See Young, Preemption at Sea, supra note 102, at 351-52.
175. O'Melveny & Myers v. FDIC, 512 U.S. 79, 88 (1994).
176. See, e.g., E. River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986) ("With admiralty jurisdiction comes the application of substantive admiralty law."). The most recent example is Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 (2004), which held that federal law governed the interpretation of a bill of lading in a maritime contract dispute. See id. at 27-28. But Kirby did not suggest that the application of federal law was automatic, and it acknowledged that state law could sometimes govern aspects of maritime contracts. See id. Much less did the Court seek to reconcile the various conflicting positions it has taken on the general issue of maritime preemption since Jensen.
177. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 207-08 (1996); Am. Dredging Co. v. Miller, 510 U.S. 443, 449-50 (1994); Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 329-30 (1973); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1960); Wilbum Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 321 (1955); Red Cross Line v. Ad. Fruit Co., 264 U.S. 109, 123-24 (1924).
178. Am. Dredging Co., 510 U.S. at 458 (Stevens, J., concurring in part and in the judgment) (citation omitted).
179. 365 U.S. 731 (1961).
180. Id. at 739. He went on to state that "[s]urely the claim of federal supremacy is adequately served by the availability of a federal forum in the first instance and of review in this Court to provide assurance that the federal interest is correctly assessed and accorded due weight." Id.
181. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546 (1995).
182. See, e.g., THE FEDERALIST NO. 80, at 478 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (observing that "maritime causes .... so generally depend on the laws of nations and so commonly affect the rights of foreigners that they fall within the considerations which are relative to the public peace"); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 FORDHAM L. REV. 393, 407 (1997) (acknowledging that a provision in early drafts of Article III referring to cases that "arise ... on the Law of Nations" was later removed and replaced with a set of party-based provisions); Young, Customary International Law, supra note 21, at 426-32 (considering the structure of the original jurisdictional grants over cases implicating foreign affairs).
183. U.S. CONST. art. I, § 8, cl. 10.
184. See, e.g., Zschernig v. Miller, 389 U.S. 429, 432 (1968) (holding that a state law was preempted, even in the absence of congressional action, because it allegedly interfered with the federal government's ability to conduct foreign affairs); see also Harold Hongju Koh, Commentary, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1831 (1998) ("[W]ith respect to international and foreign affairs law, the Constitution envisions no ... role for state legislative or judicial process.").
185. United States v. Belmont, 301 U.S. 324, 331 (1937).
186. Peter J. Spiro, Globalizatim, International Law, and the Academy, 32 N.Y.U. J. INT'L L. & POL. 567, 578 (2000); see also Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1673 (1997) (observing that "the changing nature of international regulation and concern means that even domestic law that applies to domestic persons for domestic acts can implicate foreign relations"). 188 See Cross-Border Trucking Under NAFTA, PUB. CITIZEN, Sept. 1998, http://www. publiccitizen.org/trade/nafta/chapterll/articles.cfm?ID=4336.
187. See Loewen Group, Inc. v. United States, ICSID Case No. ARB(AF)/98/3, 42 I.L.M. 811 (NAFTA Ch. 11 Arb. Trib. 2003) (challenge under the North American Free Trade Agreement to a Mississippi state court's decision in a tort case); Mondev Int'l Ltd. v. United States, ICSID Case No. ARB(AF)/99/2 42 I.L.M. 85 (NAFTA Ch. 11 Arb. Trib. 2002) (challenge under the North American Free Trade Agreement to a Massachusetts state court's decision in a contracts case).
188. See, e.g., Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223, 1263 (1999) [hereinafter Spiro, Foreign Relations Federalism] (noting that "in the face of [Texas'] execution of Karla Faye Tucker, some members of the European parliament called for an investment boycott of states employing the death penalty").
189. See, e.g., Jong S. Jun & Deil S. Wright, Globalization and Decentralization: An Overview, in GLOBALIZATION AND DECENTRALIZATION 1, 3-4 (Jong S. Jun & Deil S. Wright eds., 1996) ("When a country's political, economic, and developmental activities become globalized, the national government may no longer be the dominant entity; transnational cooperations emerge at all levels of government (national and subnational) and among all types of organizations (public organizations, multi-national corporations, and nongovernmental organizations). . . . Global changes occurring today are creating new, complex, and decentralized systems of networks that are radically different from the old centralized systems of governance which controlled the processes of international activities and decision making."); see also Goldsmith, supra note 187, at 1671, 1670-80 (discussing the interdependency among nations that has resulted from "the increasing integration of the international economy, changes in transportation and communications technology, and the growth of international law and institutions"); Julian G. Ku, The State of New York Does Exist: How the States Control Compliance with International Law, 82 N.C. L. REV. 457, 476-99 (2004) (contrasting the nationalist view with "the system of state control over international law compliance") ; Spiro, Foreign Relations Federalism, supra note 190, at 1259-70 (arguing for the abandonment of the rule of federal exclusivity); Young, Dual Federalism, supra note 112, 179-85 (listing aspects of strain resulting from trying to distinguish domestic affairs from foreign affairs).
190. See, e.g., HENKIN, supra note 21, at 6 (admitting that it is "hardly obvious" that "'foreign affairs' can be defined, isolated, distinguished"); Young, Customary International Law, supra note 21, at 415-23.
191. 376 U.S. 398 (1964).
192. Id. at 401.
193. Id. at 425. Because Justice Harlan conceded that "[w]e could perhaps in this diversity action avoid the question of deciding whether federal or state law is applicable to this aspect of the litigation," id. at 424, and that "our conclusions might well be the same whether we dealt with this problem as one of state law or federal law," id. at 425 (citations omitted), the Court's holding is plainly dicta. But the Court has consistently relied on it in subsequent cases, so that it is probably too late in the day to revisit the matter.
194. See id. at 423.
195. See Young, Customary International Law, supra note 21, at 441. In this respect, the act of state doctrine is similar to the prudential rules of standing, which are also creatures of federal common law. See Allen v. Wright, 468 U.S. 737, 751 (1984) (discussing prudential standing rules).
196. Cf. G. Edward White, Observations on the Turning of Foreign Affairs Jurisprudence, 70 U. COLO. L. REV. 1109, 1115 (1999) ("Today's judges do not think of themselves as discerning boundaries between the essentialist spheres of federal and state power; most think of themselves as balancing interests, making pragmatic adjustments based on an appreciation of the consequences of extending or contracting the scope of federal law where choice of law or federalism issues are at stake.").
197. CHEMERINSKY, supra note 36, § 6.1, at 368.