Also known as: federal-specific common law · federal common law
Written by attorneys · grounded in primary & secondary sources — see below
A body of judge-made federal law that supplies rules of decision when an issue implicates uniquely federal interests or requires national uniformity. Federal courts create such rules only in narrow domains such as federal commercial paper or recognized privileges and do not displace state substantive law in ordinary diversity cases.
The Federal Reserve Board sues Dusk Market in federal court after forged endorsements appear on Treasury rebate checks. The court applies a uniform federal standard to determine good faith and notice rather than the varying rules of the states where the banks are chartered. The uniform rule protects the federal fisc from inconsistent liabilities.
A police officer seeks trauma counseling from a licensed social worker after a shooting. In later federal litigation the officer's employer resists disclosure of the session notes. The court recognizes a federal common-law privilege that shields the confidential communications from discovery.
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The United States sues a state-chartered bank over forged endorsements on checks drawn on the Treasury. The court fashions a single federal rule governing negotiability instead of looking to the law of the several states where the checks were cashed. The uniform federal standard ensures consistent treatment of federal commercial paper.
A foreign national brings an action in federal court alleging conduct that violates a norm of international law. The court looks to federal common law to decide whether the claim is cognizable rather than borrowing state tort rules. The federal rule determines whether the action proceeds.
A plaintiff wins a large verdict in a diversity case governed by state substantive law. The court of appeals must decide whether to apply the state's "deviates materially" standard or a federal abuse-of-discretion test when reviewing the trial court's new-trial ruling. Federal procedural law controls the mode of review while the state substantive standard governs the content of the inquiry.
Survivors of a seaman killed on navigable waters sue the vessel owner in federal court. The court creates a federal common-law wrongful-death remedy because the claim implicates admiralty interests that require a uniform national rule rather than varying state statutes.
Federal specific common law applies only when an issue implicates uniquely federal interests or demands national uniformity, such as federal commercial paper or recognized privileges. In ordinary diversity cases involving state-law claims, federal courts must apply state substantive law instead.
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Federal common law governs privileges when federal law supplies the rule of decision on the underlying claim or defense. In civil cases where state law supplies the rule of decision, state privilege law applies instead.
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Yes. When national uniformity is unnecessary, a federal court may adopt state law as the federal rule rather than creating a uniform federal standard.
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…Id. , at 78. The decision in that case was not “intended to assert a vast power of the federal courts to create a general federal common law.” Id. , at 82 (Reed, J., concurring). Rather, Erie was a decision that “was rendered to promote the goal of uniformity of result in litigation in State and federal courts.” Hanna v.…