DRAFT Please do not quote or cite without written permission Thus, we might think courts-and not just federal courts-ought to be thought of in contemporar rms,certainly in terms transformed from what the framers might have imagined. That rethinking is perhaps especially called for in constitutional contexts, where the Supreme Courts voice tends to exclude the possibility of dialogue with Congress. You will want to read Professor Larry Kramer's important Foreword to the November issue of the Harvard Law Review, that I had the privilege to read as a paper he delivered to my faculty this September. But my interest is at the more mundane level of ordinary law federal and state statutes, regulations, and the common law. Here, what the courts do legislatures can undo, and one can fairly imagine the continuing processes that engage Congress, the agencies and the courts as a kind of continuing dialogue. If not in a century ago, in today's statute and agency-dominated world, we can fairly characterize the judicial role in this dialogue as secondary -yet it is not absent, and it is here that Justice Scalia's trenchant observation intrigues me. If in the constitutional context, as Prof. Kramer argues, the Courts approach essentially excludes Congress from voice, in this more ordinary setting it appears to be denying its own law-generating competence 20 Let me start by putting in front of you a contrasting formulation to Justice Scalias, framed by Justic Robert Jackson in the immediate wake of Erie rR v. tompkins one of those few cases i think i can mention without having to tell you about it-at least for the moment The federal courts have no general common law, as in a sense they have no general or comprehensive jurisprudence of any kind, because many subjects of private law which bulk large in the traditional common law are ordinarily within the province of the states and not of the federal government. But this is not to say that wherever we have occasion to decide a federal question hich cannot be answered from federal statutes alone we may not resort to all of the source materials of the common law or that when we have fashioned an answer it does not become a part of the federal non-statutory or common law .. Were we bereft of the common law, our federal statutory codes, and is apparent from the terms of the Constitution itself empting all-complete system would be impotent. This follows from the recognized futility of at For Justice Jackson, the field on which the Court might play was indeed a function of federal authorit In contrast to state law federal law is invariably interstitial and so cannot be general. Yet that does not render federal courts special tribunals, different in their nature from the common law courts of the states Were we bereft of the common law, our federal system would be impotent principally this afternoon about the little-noticed majority and dissenting opinions in Larry Kramer, We the Court, 1 15 Harv. L Rev. 1 (2001) 20 My thanks to Professor Kramer for suggesting this striking link between our papers 2 D'Oench, Duhme & Co v FDIC,315 U.S.447, 471(Jackson,JDRAFT Please do not quote or cite without written permission 19 Larry Kramer, We the Court, 115 Harv.L.Rev. 1 (2001). 20 My thanks to Professor Kramer for suggesting this striking link between our papers. 21 D’Oench, Duhme & Co v. FDIC, 315 U.S. 447, 471 (Jackson, J., concurring) -7- Thus, we might think courts – and not just federal courts – ought to be thought of in contemporary terms, certainly in terms transformed from what the Framers might have imagined. That rethinking is perhaps especially called for in constitutionalcontexts, where the Supreme Court’s voice tendsto exclude the possibility of dialogue with Congress. You will want to read Professor Larry Kramer’s important Foreword to the November issue of the Harvard Law Review, that I had the privilege to read as a paper he delivered to my facultythis September.19 But my interest is at the more mundane level of ordinary law – federal and state statutes, regulations, and the common law. Here, what the courts do legislatures can undo, and one can fairly imagine the continuing processes that engage Congress, the agencies and the courts as a kind of continuing dialogue. If not in a century ago, in today’s statute and agency-dominated world, we can fairly characterize the judicial role in this dialogue as secondary – yet it is not absent, and it is here that Justice Scalia’s trenchant observation intrigues me. If in the constitutional context, as Prof. Kramer argues, the Court’s approach essentially excludes Congress from voice, in this more ordinary setting it appears to be denying its own law-generating competence.20 Let me start by putting in front of you a contrasting formulation to Justice Scalia’s, framed by Justice Robert Jackson in the immediate wake of Erie RR. v. Tompkins, one of those few cases I think I can mention without having to tell you about it – at least for the moment: The federal courts have no general common law, as in a sense they have no general or comprehensive jurisprudence of any kind, because many subjects of private law which bulk large in the traditionalcommonlaware ordinarilywithin the province of the states and not of the federal government. But this is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all of the source materials of the common law or that whenwe have fashioned ananswerit does not become a part of the federal non-statutory or common law. ... Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself.21 ForJustice Jackson, the field on which the Court might playwasindeed a functionoffederalauthority. In contrast to state law federal law is invariably interstitial and so cannot be “general.” Yet that does not render federalcourtsspecial“tribunals,”different intheir nature from the common law courts ofthe states. “Were we bereft of the common law, our federal system would be impotent.” I mean to speak principally this afternoon about the little-noticed majority and dissenting opinions in