Date: May 1st, 2006 3:58 AM Author: white comical volcanic crater gaming laptop
Date: May 1st, 2006 3:56 AM
Author: 174
Subject: Not from Google, but here's some from Westlaw:
There is no federal general common law and Congress has no power to declare substantive rules of common law applicable in a state, whether they be local or general in nature, be they commercial law or apart of the law of torts.
Erie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817 (U.S. 1938)
_________
Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.
Erie R. Co. v. Tompkins 304 U.S. 64, *78, 58 S.Ct. 817, **822 (U.S. 1938)
____________
The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes.FN23 The doctrine rests upon the assumption that there is ‘a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute,’ that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts ‘the parties are entitled to an independent judgment on matters of general law’
Erie R. Co. v. Tompkins 304 U.S. 64, *79, 58 S.Ct. 817, **823 (U.S. 1938)
______________
The phrase “laws of the several states,” as used in statute requiring federal courts to apply laws of the several states except in matters governed by federal Constitution or statutes, held to include not only state statutory law, but also state decisions on questions of general law, in absence of any constitutional provision purporting to confer upon federal courts power of declaring substantive rules of common law applicable in a state. 28 U.S.C.A. § 1652.
Erie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817 (U.S. 1938)
Date: May 1st, 2006 4:13 AM Author: bateful foreskin garrison
As I said in the other thread - every one of these quotes from Erie refers to federal common law regarding STATE law matters. Erie said that federal courts must apply state statutes and common law in deciding state law matters.
This does NOT mean that there is no federal common law!
Here's a link describing a Yale law review article about federal common law:
Date: May 1st, 2006 4:19 AM Author: Mahogany Wild Ratface Turdskin
Although the United States Supreme Court has effectively barred the creation of federal common law in areas traditionally under the authority of state courts, there are several areas where federal common law continues to govern.
Date: May 1st, 2006 4:21 AM Author: bateful foreskin garrison
This is what I've been saying all along - Erie said the federal courts can't create common law regarding STATE law matters but they still create common law regarding FEDERAL law matters. What do people think a circuit split is anyway??
Date: May 1st, 2006 4:22 AM Author: Aquamarine Mental Disorder Casino
“Although it is much too late to deny that there is a significant body of federal law that has been fashioned by the federal judiciary in the common-law tradition, it remains true that federal courts, unlike their state counterparts, are courts of limited jurisdiction that have not been vested with open-ended lawmaking powers.” Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 95 (1981).
Date: May 1st, 2006 4:25 AM Author: Mahogany Wild Ratface Turdskin
ACCEPT YOUR PWNAGE!
there remain several areas of law where federal common law is allowed to continue, particularly where the Constitution of the United States gives the U.S. Congress power to make laws in an area, such as admiralty law, antitrust, bankruptcy law, and civil rights.
Congress often lays down broad mandates with vague standards, which are then left to the courts to interpret, and these interpretations eventually give rise to complex understandings of the original intent of Congress, informed by the courts' understanding of what is just and reasonable.
Furthermore, the U.S. Supreme Court has also determined that federal courts are allowed to fashion common law rules where a significantly important federal interest exists. The case of Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), the court set forth three criteria for determining whether the court should create a federal common law rule:
Is there a federal competence to create law in this area—i.e. would Congress be able to adopt a law in such an area?
If there is federal competence, should state or federal law govern?
If federal law governs, should courts borrow state law or create a new federal rule?
Date: May 1st, 2006 4:39 AM Author: bateful foreskin garrison
Thanks for the backup. Funny that they created this thread to try to humiliate me for being wrong. When all they did is prove how stupid they are for failing to grasp such an elementary concept.
Date: May 1st, 2006 4:31 AM Author: bateful foreskin garrison
Ok I will start posting SCOTUS cases that refer to federal common law.
"In County of Oneida v Oneida Indian Nation (1985) 470 U.S. 226, 84 L. Ed. 2d 169, 105 S. Ct. 1245, the United States Supreme Court (1) held that the Oneidas could maintain a claim to be compensated for violation of their possessory rights on the basis of federal common law, but (2) reserved the question whether equitable considerations ought to limit the relief available."
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197
Date: May 1st, 2006 4:32 AM Author: bateful foreskin garrison
"A number of District Courts nonetheless held that, although CERCLA did not mention the word "contribution," such a right arose either impliedly from provisions of the statute, or as a matter of federal common law."
Cooper Indus. v. Aviall Servs., 543 U.S. 157 (2004)
Date: May 1st, 2006 4:34 AM Author: mustard potus Subject: Corrected Quote
"A number of District Courts nonetheless held that, although CERCLA did not mention the word 'contribution,' such a right arose either impliedly from provisions of the statute, or as a matter of federal common law."
Cooper Indus. v. Aviall Servs., 543 U.S. 157 (2004).
Date: May 1st, 2006 4:38 AM Author: bateful foreskin garrison
I don't give a mother fucking rats ass what YOU call it, if you call it the wrong thing it is your fault and not mine. You're a fucking retard, you have trouble wrapping your mind around the most basic concepts in thread after thread. YOU'RE WRONG, ADMIT IT, GROW UP, AND MOVE ON.
Date: May 1st, 2006 4:36 AM Author: bateful foreskin garrison
"the individual's ATS claim did not meet the requirement that federal courts ought not to recognize private claims, under federal common law, for violations of any international-law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when the ATS had been enacted in 1789, as:"
Date: May 1st, 2006 4:41 AM Author: Sick church partner
Wow, the Z, 4, Q, Q, Q, Batman Symbol douchebag really got PIZOWN3D on this thread. HAHA read the cases slowly you stupid niggers. This shit isn't that hard.
Date: May 1st, 2006 4:44 AM Author: flickering telephone
"there are perhaps some miniscule areas of the federal law made in the common law tradition,"
like copyright? that's one of several examples, already noted. the majority of what would be regarded as "copyright law" is not codified in any of the copyright acts, but rather has evolved as what is generally referred to as "common law." federal courts aren't filling trivial interstices in hightly specific statutes; they're doing exactly what state courts do when they make tort law.
Date: May 1st, 2006 5:05 AM Author: flickering telephone
that would be a great point if it even remontely captured the essence of what common law is, or is not. all common law has as its "source" either some general edict or pronouncement that's indistinguishible from a statute, or what is formally a statute. with copyright, again, the statute says, e.g., only that "fair use" is permitted, much as there are (state) statutes that say little more than "unconscionable contracts are not to be enforced." from there, it is the courts -- entirely -- that define what fair use and unconscionable contracts are, through a succession of (mostly appellate) decisions.
and if you go to a trial court seeking relief that has neither a statutory basis nor precdential case law to support it, that's an action that will be dismissed on the pleadings. there is no sense in which either modern state courts regard themselves as being empowered to make whatever law they please, or fedral courts are merely "interpreting" extensive statutory codifications at the margins. as a matter of degree federal statutes might generally be more detailed. but in those areas of law where there is federal preemption, federal courts are doing exactly what state courts are doing, even if you can cite some isolated bits of puffery that suggest they shouldn't be doing so,
Date: May 1st, 2006 5:25 AM Author: bateful foreskin garrison
HOOHOO this is rich! Just when I think you can't get any dumber you come out with something like this!
There is NO STATE PERIOD where caselaw trumps a later-in-time state statute (assuming the statute is constitutional and otherwise valid). Just suggesting such a thing is preposterous.
Date: May 1st, 2006 5:30 AM Author: bateful foreskin garrison
You can take all the time you want, you aren't going to come up with a state.
And I guarantee that whatever you eventually post to try to counter what I said, it will be something you misunderstood and are posting completely out of context.
Date: May 1st, 2006 5:07 AM Author: bateful foreskin garrison
At this point, you are compounding your humiliation by demonstrating to one and all that you really don't even get what common law is in the first place. Wow, just, wow.
Date: May 1st, 2006 5:21 AM Author: bateful foreskin garrison
My first instinct was to suggest that they are the same poster, but then I remembered that there is no shortage of retarded posters here. He also didn't switch accounts to give SJ a chance to post in his defense.
Date: May 1st, 2006 5:11 AM Author: bateful foreskin garrison
What about federal common law that isn't based on statute at all? See for example The Charming Betsy (which is still good law) where the supreme court used the 'law of nations' to construe a statute. The 'law of nations' was unwritten 'law' that had developed through centuries of accepted practice. The 'law of nations' is still used even today as federal common law.
Date: May 1st, 2006 5:27 AM Author: bateful foreskin garrison
Ummm, that is a far cry from your original position that federal common law doesn't exist at all.
And then you tried to make some lame excuse that common law is derived from statute and really isn't different from statute.
And now, when I point out that some common law has NO basis in statute, you just note that it is the exception - you don't even try to argue that I'm wrong anymore.
Date: May 1st, 2006 11:21 AM Author: topaz round eye
Not really. See Grokster and Sony copyright cases regarding contributory infringement and inducement. Basically pulled straight from common law without a statutory hook.
Date: May 1st, 2006 11:24 AM Author: bateful foreskin garrison
Citing examples to him won't work. I actually gave several cites to recent SCOTUS cases where they specifically discussed federal common law. He still doesn't get it.
Date: May 1st, 2006 5:27 AM Author: Aquamarine Mental Disorder Casino
"While Bivens stands,the ground supporting it has eroded. For the past 25 years, we have consistently refused to extend Bivens liability to any new context.; Correctional Services Corp., supra, at 68. Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes
of action. 534 U. S., at 75 (SCALIA, J., concurring)." (scalia)
Date: May 1st, 2006 5:47 AM Author: Aquamarine Mental Disorder Casino
(Scalia) : Although in one respect, the Law Lords seem less potent than the Supreme Court of the United States, in that they are not operating under a written constitution, so they can't just disregard an act of Parliament, but in another respect, they are MORE potent than the Supreme Court of the United States, because they are a common law court, which we are not. There is virtually no Federal common law, my court is always dealing with a text, either with a Federal statute, or with the text of the Constitution...By and large - with few, very minor exceptions - there is no federal common law, so we can't make it up. Or at least, we're not supposed to be making it up.
Date: May 1st, 2006 6:09 AM Author: Aquamarine Mental Disorder Casino
(Scalia) : Although in one respect, the Law Lords seem less potent than the Supreme Court of the United States, in that they are not operating under a written constitution, so they can't just disregard an act of Parliament, but in another respect, they are MORE potent than the Supreme Court of the United States, because they are a common law court, which we are not. There is virtually no Federal common law, my court is always dealing with a text, either with a Federal statute, or with the text of the Constitution...By and large - with few, very minor exceptions - there is no federal common law, so we can't make it up. Or at least, we're not supposed to be making it up.
Date: May 1st, 2006 6:11 AM Author: passionate adulterous party of the first part brunch
Virtually no; few, very minor exceptions; these sound like caveats to that are entirely consistent with the OP and entirely inconsistent with what you think.
Date: May 1st, 2006 6:19 AM Author: bateful foreskin garrison
Scalia was comparing the US federal courts with the British system. England has no constitution - its law is far more based on common law than our own. Compared to the Brit system, we have less federal common law, but he was going a little over the top and overgeneralizing a bit.
Now go back at the other posts I've given by OTHER supreme court justices who were writing OPINIONS and not interviews. And stop acting like an idiot.
Date: May 1st, 2006 6:25 AM Author: bateful foreskin garrison
Dood, he never said there isn't any federal common law. Look at all of the SCOTUS cases I posted.
He DID say 'with very minor exceptions there is no federal common law' - but 'minor exceptions' is a relative term.
He was comparing it to the English system, and compared to it, our system has a lot less. That doesn't mean to say that we don't have any. And in fact we have quite a lot.
Scalia is probably confusing you because according to HIM there isn't much federal common law because judges are supposed to construe the constitution very strictly. In his view, judges shouldn't be making federal common law. But even he acknowledges that they do.
Seriously man give it a rest, read some SCOTUS cases that talk about it in depth.
Date: May 1st, 2006 6:29 AM Author: bateful foreskin garrison
Seriously dood you need to learn to read. Scalia did not say that there is no federal common law.
When you read a passage, remember to read the few words BEFORE and AFTER it as well to really get the full meaning. Pulling a few words out of context will only confuse your feeble mind.
I know you like to read as few words as possible, but try not to.
Date: May 1st, 2006 6:11 AM Author: bateful foreskin garrison
Z, 4, Q, Q, Q, Batman Symbol tried really hard to say it doesn't exist. He pulled his usual routine - quote a bunch of irrelevant stuff out of context that he clearly doesn't understand, etc.
He likes to find a passage that has the words he wants to see all together in one place, but doesn't have any understanding of what those words mean in relation to each other and the other words in the passage.
Date: May 1st, 2006 6:12 AM Author: passionate adulterous party of the first part brunch
Like interstate disputes? Federal common law. Congressional delegation of common law? Federal common law. Proprietary interests of the United States? Implied right of action?
Date: May 1st, 2006 6:24 AM Author: Snowy Idea He Suggested
i'm pretty sure it has something to do with activist federal judges, justice scalia, federal common law, raines v byrd, festo v shoketsu, the hard science requirement, and the USPTO.
Date: May 1st, 2006 6:28 AM Author: Snowy Idea He Suggested
"Funny, why haven't lawyers and judges in other areas caught on? Must all be dumb I guess."
well, other areas don't really lend themselves to needless complexity. for example, in tort law, duty is duty. and in the criminal law, intent is intent. only patent law gives you room to maneuver and inject needless complexity where it doesn't belong.
Date: May 1st, 2006 8:24 AM Author: stimulating sadistic locale chad
Are you guys fucking serious? This is a real debate? Havent any of you ever taken fed cts? Dont you understand that what this IP fellow is referring to is completely seperate from what Erie stands for? Holy Christ this may be the most retarded "debate" on the law Ive seen on this board. All thats missing is plucot.
Date: May 1st, 2006 8:31 AM Author: stimulating sadistic locale chad
As far as I can tell you were heavily involved in refusing to understand what he was referring to, instead preferring to pound on ERIE ERIE ERIE over and over again, like a simpleton.
Date: May 1st, 2006 10:53 AM Author: bateful foreskin garrison
I find it hard to fucking believe that you've been on this thing all through the night while I was asleep - yet here you are.
You really need to get some therapy. Staying up all night, refusing to give up on this hopless crusade after EVERYONE has told you you're out of your mind - that must be indiciative of some kind of mental illness. Please get help - it actually isn't funny to crucify you any more. It is becomming absolutely tragic and pathetic.
See Sosa v. Alvarez-Machain (2004) a/k/a the "Bivens" of International Law. Also known to Justice Scalia as the epitomy of the Court's "never say never" jurisprudence.
Date: May 1st, 2006 8:32 AM Author: stimulating sadistic locale chad
Machain is a hilarious case, who cant get behind abduction? The reasoning by Rehnquist really brings a smile to my face from a detached observer perspective. And I cant wait till someone starts arguing there is no customary international law.
Date: May 1st, 2006 8:40 AM Author: Cerebral library
I am saying that there exists one or more sets of common law promulgated by the federal courts. I don't know what "two different things" you mean and I don't care. I am aware that there is no general federal common law of contracts or property or whatever.
Date: May 1st, 2006 8:48 AM Author: Cerebral library
I was actually speaking as someone who just spent a year clerking on a federal appellate court MAKING AND INTERPRETING FEDERAL (COMMON) LAW, but think what you want.
Date: May 1st, 2006 10:59 AM Author: bateful foreskin garrison
By "spoken like a true corporate attorney" do you mean that he just said a bunch of stuff you don't understand? Because I understood it just fine.
You are an idiot, you have no credibility, and every time I see you post from now on I am going to post a link to this thread so that you can relive your humiliation over and over.
Date: May 1st, 2006 10:41 AM Author: charismatic whorehouse nowag
I like when people start threads to bash someone and wind up getting utterly PWN3D like you and the OP did. Thank you for entertaining me this morning.
Date: May 1st, 2006 11:00 AM Author: bateful foreskin garrison
We've mentioned dozens of others in the course of debating this - and the debate has been raging in other threads too. He still doesn't get it. He probably never will.
Date: May 1st, 2006 11:15 AM Author: bateful foreskin garrison
Somewhere in the other thread someone mentioned that you once argued like in this pathetic manner, saying that the president can overrule the supreme court. Is that true?
Date: May 1st, 2006 11:35 AM Author: bateful foreskin garrison
First of all, citing anything before Erie won't convince him because he thinks Erie put an end to federal common law.
Second, I tried citing to recent cases from the last couple years, and even that doesn't do it.
He has this thing where, if he sees a few words strung together in a case that appears to agree with what he's saying, he just clings to it, refusing to read the words BEFORE and AFTER it in order to put them in context.
I never really thought law school could be hard for anyone until I started seeing the substantive law debates on this board. No federal common law? How the fuck do you dumbshits come up with this stuff?
Date: May 1st, 2006 5:27 PM Author: swashbuckling gas station goal in life
in theory, there is supposed to be no federal common law except in very limited circumstances. so, for example, you should never see a federal court declare something void for public policy reasons even though the defendant's actions literally comply with the requirements of the law. federal courts are supposed to merely interpret federal statutes and the constitution. however, you do see instances (though they are controversial) where the court will declare an action invalid because it is contrary to public policy (i'm thinking mostly of tax here)...generally it's done under the guise of interpretation. in other instances, such as antitrust, congress has basically delegated the power to the courts to develop the law using the common law method of adjudication.
He's right, there's federal procedural common law and some common law in other areas as well, despite statements to the contrary. You'll learn all about it in fed courts.
Date: May 1st, 2006 5:32 PM Author: swashbuckling gas station goal in life
what do you mean by fed procedural common law? like "laches" doctrine?
and, though i've not taken fed courts, i think the scope of federal common law is much greater than what's normally taught as being fed common law. entire branches of law, like antitrust (and according to renada, certain areas of copyright law) are federal common law.
Oddly, I'm going to be doing a huge project on procedural common law soon, so I can get back to you with more details later. Although it's painfully tedious and boring, trust me.
There's common law in maritime law and other areas of exclusive federal jurisdiction. There's also common law w/r/t procedural issues in suits b/t states and in some other areas, I think with contract issues involving the US as a party. It's all esoteric shit, don't worry about it.
Date: May 1st, 2006 5:51 PM Author: bateful foreskin garrison
Antitrust law is almost entirely federal common law. A course in antitrust basically consists of Sherman act ss 1 and 2 and clayton 7, and a shitload of case law.
All combinations in restraint of trade, rule of reason, per se, price fixing, group boycott - all of this stuff is federal common law and it all changes over time.
Patent law also has a good many doctrines that are based entirely on federal common law - docrine of equivalents, licensee estoppel, inequitable conduct, prosecution laches, blah blah blah blah.
Date: May 1st, 2006 6:45 PM Author: bateful foreskin garrison
Please note that I did not start this thread it was started be someone who was trying to humiliate me for saying there was federal common law.
He turned out to be the one who was humiliated. But don't flame me for thinking this was such a difficult concept that it deserved its own thread - like I said I didn't start it.
Date: May 2nd, 2006 2:35 PM Author: smoky bull headed famous landscape painting
This Court has recently discussed what one might call “federal common law” in the strictest sense, i.e., a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to the judicial “creation” of a special federal rule of decision. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-643, 101 S.Ct. 2061, 2066-2068, 68 L.Ed.2d 500 (1981). The Court has said that “cases in which judicial creation of a special federal rule would be justified ··· are ··· ‘few and restricted.’ ” O'Melveny & Myers v. FDIC, 512 U.S. 79, 87, 114 S.Ct. 2048, 2055, 129 L.Ed.2d 67 (1994) (quoting Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963)). “Whether latent federal power should be exercised to displace state law is primarily a decision for Congress,” not the federal courts. Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). Nor does the existence of related federal statutes automatically show that Congress intended courts to create federal common-law rules, for “ ‘Congress acts ··· against the background of the total corpus juris of the states····' ” Id., at 68, 86 S.Ct., at 1304 (quoting H. Hart & H. Wechsler, The Federal Courts and the Federal System 435 (1953)). Thus, normally, when courts decide to fashion rules of federal common law, “the guiding principle is that a significant conflict between some federal policy or interest and the use of state law ··· must first be specifically shown.” 384 U.S., at 68, 86 S.Ct., at 1304. Indeed, such a “conflict” is normally a “precondition.” O'Melveny, supra, at 87, 114 S.Ct., at 2055. See also *219 United States v. Kimbell Foods, Inc., 440 U.S. 715, 728, 99 S.Ct. 1448, 1458-1459, 59 L.Ed.2d 711 (1979); Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 98, 111 S.Ct. 1711, 1717, 114 L.Ed.2d 152 (1991).
Atherton v. F.D.I.C. 519 U.S. 213, *218-219, 117 S.Ct. 666,**670 (U.S.N.J.,1997)
No, it still is. FRE 501 preserves all privileges at COMMON LAW, not from the day of its enactment, but evolving from federal court decisions CREATING FEDERAL COMMON LAW.
I am starting to believe very strongly that it is impossible to intelligently comment on semi-esoteric legal topics (Erie and its aftermath isn't exactly super complex) unless you have gone to law school. You sound like someone trying to have a conversation in Italian with native speakers by using Babelfish.
Date: May 5th, 2006 11:20 AM Author: bateful foreskin garrison
I agree - it is extremely frustrating to have to suffer these pointless debates with the non-law types.
The problem on this board is that a lot of posters are imposters - they think they can pretend to go/have gone to law school by spewing the stuff they learn on Law and Order.
Of course, anyone who has been to law school for one semester can point these people out in a heartbeat. And yet they still refuse to admit that they know nothing.
Date: May 5th, 2006 11:46 AM Author: bateful foreskin garrison
Hold on a second here.
"the statute plainly states the congress can override the privilege."
How does that have anything to do with it being federal common law?
Congress can most definitely override federal common law, unless it is otherwise prevented.
For example - take antitrust law. The statutes don't say 'this fact pattern will be decided under a rule of reason' and 'this one will be per se illegal.' Whether something is per se illegal or rule of reason is entirely a matter of FEDERAL common law.
That said, Congress is completely free to pass a statute saying 'all cases and controversies arising under the Sherman Act shall be tried under a rule of reason.' If Congress did that, they would be 'overriding' the federal common law.
Congress can pass statutes overriding prior statutes AND common law.
The fact that you don't understand this concept is Exhibit 4785873 in your campaign to earn the status of 'most retarded poster of all time.'
Date: May 5th, 2006 11:38 AM Author: bateful foreskin garrison
Wow, you really are determined to become one of the dumbest posters ever, aren't you?
"...shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."
That's federal common law.
As for this part you referred to:
"Except as otherwise required by the Constitution of the United States or provided by Act of Congress..."
This merely invokes a limitation on the reach of the rule so that it doesn't become void for being unconstitutional, etc.
The Federal Rules of Evidence, like the FRCP, are promulgated by the Court persuant to its authority. A rule is invalid if it is unconstitutional or contrary to some other federal statute, however. Therefore this clause is included as an express disclaimer to anything under the rule that could be unconstitutional etc, ensuring that the rule will be construed in a way that doesn't violate it.
It is a constitutionality preserving clause.
The fact that you make so much of such a common clause clearly demonstrates that you know nothing about the law. These clauses are ubiquitous.
Date: May 5th, 2006 12:03 PM Author: bateful foreskin garrison
I assume that the history of the FRE is similar to that of the FRCP - ie that the court was charged with promulgating a set of rules. The fact that congress gives effect to the rules via statute doesn't have anything to do with it.
I could be wrong about how the FRE were created, but it doesn't matter. The clause you pointed out is a constitutonality-preserving clause only, it is ubiquitous in the law.
It merely says that the law shall not be construed in a way that would make it unconstitutional and therefore invalid.
Date: May 5th, 2006 12:11 PM Author: aqua lay Subject: END OF THREAD
Congress can overrule common law by statute- ask anyone who has studied Owen v. Kroger and the Finley case. Congress subsequently codified one of them in the USC and overruled the other in the USC by statute.
Date: May 5th, 2006 2:11 PM Author: bateful foreskin garrison
We've cited recent supreme court cases that all acknowledge federal common law. Why can't you just accept that and get on with your life? What else do we have to do to prove it to you?
Date: May 5th, 2006 10:23 AM Author: laughsome institution voyeur
you're kidding, right? of course it's not just a/c privilege. did you not take evidence?
"Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law."
see Jaffee, In re Judith Miller, and tons of other cases.
Date: May 5th, 2006 2:12 PM Author: bateful foreskin garrison
Z4QQQ - I'm starting to get the idea that you don't really know what 'common law' is. For example you said something wasn't common law if a statute could modify it, and that simply isn't true.
Why don't you tell us what you think common law is, then we can take it from there.
Date: May 5th, 2006 2:56 PM Author: bateful foreskin garrison
Starting with O'Melveny & Myers:
You are taking that brief quote out of context. You left out some extremely important qualifying language:
"In determining whether state law is to be displaced by federal law"
To take this and conclude that it applies to ALL federal common law is sheer nonsense.
As for Texas Instruments v. Radcliff - you neglected to cite this:
"A right to contribution may arise in either of two ways: first, through the affirmative creation of a right of action by Congress, either expressly or by clear implication; or, second, through the power of federal courts to fashion a federal common law of contribution. "
and this:
"Congress neither expressly nor implicitly intended to create a right to contribution. If any right to contribution exists, its source must be federal common law."
Date: May 5th, 2006 3:09 PM Author: bateful foreskin garrison
It said that is limited when it comes to crafting federal common law that is contrary to affirmative state law. It is NOT saying that it is limited GENERALLY.
The court says that TI is a narrow exception to THAT. You don't get the difference?
Just give it up man. You just don't get it.
I'll also note that initially you refused to believe that there was ANY federal common law. Even though you are reading these cases out of context, at least it is good to see that you admit you were wrong.
Date: May 5th, 2006 3:12 PM Author: Snowy Idea He Suggested
can you let this thread die now? this doesn't really look good for you, because next time anyone gets the upper hand on you re con law, they're not going to let you forget about it, and you'll be forced to change your moniker -- yet again. these things tend to come full circle on xoxo.
Date: May 5th, 2006 3:30 PM Author: Snowy Idea He Suggested
Authority
The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act. 28 U.S.C. §§ 2071-2077.
Date: May 5th, 2006 3:39 PM Author: bateful foreskin garrison
OMG you are a total idiot.
This part has nothing to do with federal common law - this is a tangent you created when you started flaming me over the FRCP and FRE.
To make it unambiguously clear - the creation and amendment of the FRCP and FRE does not involve federal common law, and I never said it did. It is persuant to the Rules Enabling Act.
Date: May 5th, 2006 3:54 PM Author: bateful foreskin garrison
No, the courts do NOT enact statutes. I have never, ever said that they did, and I defy you to link to a post where I said that.
The Rules Enabling Act gives authority under that statute to the court to PROMULGATE rules of civil procedure, etc. That's what I said then, and that's what I'm saying now. (I didn't give the name of the Rules Enabling Act in my original post in the subject tho.)
Date: October 11th, 2006 11:12 AM Author: Titillating Pungent Police Squad
Thanks for the bump. I ignored this hooknose asshole's arguments and simply called him a dumbass douchebag yesterday because of his participation in threads like these.
Date: May 1st, 2007 4:15 AM Author: hairless cuckold
2 years after graduation, I dont even remember what common law is exactly. im pretty sure it has something to do with judges. which ones, i have no idea.