DRAFT Please do not quote or cite without written permission Courts or Tribunals? Federal Courts and the Common law Peter L st I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. O w. Holmes, Collected Legal Papers 295-96(1920) I recognise without hesitation that judges do and must legislate, but they can do so only interstitially, they are confined from molar to molecular motions. A common-law judge could not say think the doctrine of consideration a bir of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say l think well of the common-law rules of master and servant and propose to introduce them here en bloc O W. Holmes, J, dissenting, in Southern Pacific Co v Jensen. 244 U.S. 205, 221(1917) TThe standard so fixed scarcely advances the solution in a concrete case, it only eliminates the egregious, leaving the tribunal a free hand to do as it thinks best. But that is inevitable unless liability is to be determined by a manual, mythically prolix, and fantastically impractical.. In the end Imy judgment may seem merely a fiat, but that is always true, whatever the disguise. Learned Hand in Sinram v. Pennsylvania R. Co., 61 F2d 767(1932) In his masterpiece, A Man For All Seasons, Robert Holt puts his protagonist, Thomas More, into conversation with his son-in-law Roper. Rich, an evil character who will bring More's downfall, has just left the stage Roper: While you talk he's gone M: And he should go, if he was the Devil himself, until he broke the law! R: So now you'd give the Devil the benefit of the law! M: Yes. What would you do Cut a great road through the law to get after the Devil? R; I'd cut down every law in England to do that! M: Oh? And when the last law was down and the devil turned round on youwhere would you Roper, the laws being all flat? This country's planted thick with laws fromcoast Vice Dean and Betts Professor of Law, Columbia University School of Law. Michael Dorf, Harold Edgar, Cynthia Farina, Helen Hershkoff, Larry Kramer, John Manning, Henry Monaghan, Jim Pfander, and a faculty workshop at Rutgers-Camden Law School all contributed thoughtful commentary on earlier drafts; any deficiencies this analysis are my doing onlyDRAFT Please do not quote or cite without written permission * Vice Dean and Betts Professor of Law, Columbia University School of Law. Michael Dorf, Harold Edgar, Cynthia Farina, Helen Hershkoff, Larry Kramer, John Manning, Henry Monaghan, Jim Pfander, and a faculty workshop at Rutgers-Camden Law School all contributed thoughtful commentary on earlier drafts; any deficiencies in this analysis are my doing only. -1- Courts or Tribunals? Federal Courts and the Common Law Peter L Strauss* “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” O.W. Holmes, Collected Legal Papers 295-96 (1920). “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc." O.W. Holmes, J., dissenting, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) . “[T]he standard so fixed scarcely advances the solution in a concrete case; it only eliminates the egregious, leaving the tribunal a free hand to do as it thinks best. But that is inevitable unless liability is to be determined by a manual, mythically prolix, and fantastically impractical. ... In the end [my judgment] may seem merely a fiat, but that is always true, whatever the disguise.” Learned Hand in Sinram v. Pennsylvania R. Co., 61 F.2d 767 (1932). In his masterpiece, A Man For All Seasons, Robert Holt puts his protagonist, Thomas More, into conversation with his son-in-law Roper. Rich, an evil character who will bring More's downfall, has just left the stage: Roper: While you talk he's gone! M: And he should go, if he was the Devil himself, until he broke the law! R: So now you'd give the Devil the benefit of the law! M: Yes. What would you do? Cut a great road through the law to get after the Devil? R; I'd cut down every law in England to do that! M: Oh? And when the last law was down and the Devil turned round on you -- where would you hide, Roper, the laws being all flat? This country's planted thick with lawsfromcoast to coast --