Common Law Judging in an Age of Statutes

Well into the twentieth century, a justice on the Supreme Court was a common law judge. Before the rise of the regulatory state and Erie Railroad Co v Tompkins’s1rejection of general federal common law, a master of the warp and woof of the common law such as Justice Oliver Wendell Holmes Jr was securely in his element.2 The modern federal judge, by contrast, is a master of federal statutes and regulations. But the common law still matters as it remains the foundation on which federal statutes are written. A clear grasp on how common law principles undergird federal statutes is one of many virtues on display in Judge Diane Wood’s many opinions from her first quarter century on the bench.

This Essay focuses on one such opinion. The dispute seems at first to confront an ordinary problem of statutory construction, but in fact it requires linking the federal statute to foundational principles of the common law. This case shows how then–Chief Judge Wood is singularly adept at this modern challenge even when the legal landscape is especially obscure and the advocates before her particularly inept.