Opinion of the Court
I mean, of course, considerations of what is expedient for the community concerned." The Common Law 31–32 (Howe ed. 1963).
One need not accept the Holmesian view as far as its ultimate implications to acknowledge that a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision.
Second, along with, and in part driven by, that conceptual development in understanding common law has come an equally significant rethinking of the role of the federal courts in making it. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), was the watershed in which we denied the existence of any federal "general" common law, id., at 78, which largely with drew to havens of specialty, some of them defined by express congressional authorization to devise a body of law directly, e. g., Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448 (1957) (interpretation of collective bargaining agreements); Fed. Rule Evid. 501 (evidentiary privileges in federal question cases). Elsewhere, this Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest. E. g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 726–727 (1979).[1] And although we have even assumed competence to make judicial rules of decision of particular importance to foreign relations, such as the act of state doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964), the general practice has been to look for legislative guidance before exercising innovative authority over substantive law. It would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries.
- ↑ See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System, ch. 7 (5th ed. 2003); Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 405–422 (1964).
