Document Type

Article

Publication Date

2023

Status

Accepted

Abstract

A “common law statute” is an important type of federal statute, the defining feature of which is that it resists standard methods of statutory interpretation. The category in-cludes such important statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of this category, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under common law statutes. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today—i.e., rules that jurisdic-tions generally have in common. To determine, for example, whether a state officer is entitled to immunity under § 1983, a court should ask whether American courts gener-ally extend immunity to officials accused of tortious conduct in similar circumstances.

Existing caselaw provides two rivals to this proposal. According to one rival, common law statutes constitute delegations of substantially unrestrained lawmaking power to courts. They thus empower judges to create new legal rules in a policy-driven manner. According to the other rival, common law statutes incorporate the common law rules that prevailed at the time of their enactment. Judges should therefore decide cases by applying historical common law rules.

This Article’s proposal is superior to its rivals for several reasons. It more likely reflects Congress’s intent in enacting each common law statute because it represents a more conventional and more sensible understanding of the relationship between courts and unwritten law. It strikes a better balance between the law’s needs for stability and flexibility. And it’s more responsive to democratic preferences. After anticipating several objections, the Article concludes by illustrating some of the model’s implications for two important common law statutes—§ 1983 and the Sherman Act.

GW Paper Series

2023-61

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