THE ORIGINAL SOURCE OF THE CAUSE OF ACTION IN FEDERAL COURTS: THE EXAMPLE OF THE ALIEN TORT STATUTE

Federal common law causes of action-actions created neither by Congress nor by state law-have long generated debate among judges and scholars. In 'Erie Railroad Co. v. Tompkins', the Supreme Court famously rejected "federal general common law." Nonetheless, the Court has cautious...

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Bibliographic Details
Published in:Virginia law review 2015-05, Vol.101 (3), p.609-689
Main Authors: Bellia, Anthony J., Clark, Bradford R.
Format: Article
Language:English
Subjects:
Alien Tort Claims Act (United States)
COMMON LAW
Constitutional law
Court decisions and opinions
Courts of law
Debates and debating
Federal courts
Federal law
Indictments
INTERNATIONAL LAW
Judges & magistrates
Judicial powers
Judicial system
Judicial writs
JUDICIARY
Jurisdiction
Law schools
Legal proceedings
Legal research
PUNISHMENT
State court decisions
State law
State laws
Statutory law
Torts
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Summary:Federal common law causes of action-actions created neither by Congress nor by state law-have long generated debate among judges and scholars. In 'Erie Railroad Co. v. Tompkins', the Supreme Court famously rejected "federal general common law." Nonetheless, the Court has cautiously embraced several specific enclaves of federal common law over the ensuing decades. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts. For instance, may federal courts recognize an implied cause of action for the violation of a federal statute that does not itself create a cause of action? Relatedly, may federal courts recognize an implied cause of action for the violation of the Constitution when neither the Constitution nor a federal statute specifically creates one? Although courts and scholars continue to debate these questions, they have not reached a consensus on how to resolve them.
ISSN:0042-6601