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The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 William & Mary Law Review 753 (2013)


We do not have an Erie for the "Age of Statutes." The Erie that

we have addresses a world in which the common law dominated and

in which federal courts could go ahout their daily work hy recourse

to state-court-created doctrine,^ usually without creating "federal

common law." Those understandings do not fit an era in which

federally made statutory law dominates the legal landscape and the

primary role of federal courts is to interpret it. But the creation of

federal common law remains discouraged, thanks to Erie's continuing

vitality and the durahility of the notion that Erie requires

federal common law making to he "limited" and "restricted."^ As a

result, federal courts have spent the last century engaged in an

under-the-radar enterprise of fashioning and appl5dng what are

arguahly hundreds of federal common law doctrines to questions of

federal statutory interpretation, without acknowledging that they

are doing so and without explaining how their actions fit into the

Erie paradigm.

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