Asaf Raz (University of Pennsylvania Carey Law School) has posted Reconnecting Federal Law and the Common Law, 78 Ala. L. Rev. (forthcoming 2026) on SSRN. Here is the abstract:
This Article provides the first detailed account of a crucial phenomenon in American law: the federal law–common law disconnect. Throughout history, the Constitution and other federal texts have relied on common law concepts; the federal courts routinely adjudicate common law questions, no less than constitutional or statutory ones; and practically and culturally, the United States is a common law country, just like the rest of its Anglo-American peers. Today, motivated by an array of factors ranging from legal realism to originalism, many federal judges and practitioners exhibit a deep aversion toward the common law, perceiving it at best as a matter that should be left to state courts. When faced with common law cases (as they constantly are), these members of the federal legal community often turn to free-floating methods of reasoning, which misconstrue core principles of multiple areas of law, generate plainly unjust and inefficient outcomes, and subvert, rather than promote, both realist and originalist commitments. In the process of uncovering the federal law–common law disconnect, this Article makes four main contributions to the literature, which innovatively bring together multiple spaces of recent scholarship, from constitutional law and the new originalism, through law and economics, to private law theory. First, the Article explores the common law origins of the American legal system, at both the state and federal level. Second, it identifies the primary drivers of the rift that has, nonetheless, developed between the federal legal system and the common law. Third, it ties together a broad, trans-substantive group of recent cases—from the Purdue bankruptcy litigation to the Supreme Court’s decisions on corporate personhood—where this disconnect has led to both injustice, inefficiency, and divergence from the historical meaning of legal norms. Fourth, it proposes in detail how federal law and the common law can and must reconnect, thus setting a crucial segment of our legal system on a more historically, textually, economically, and morally tenable path forward.
Highly Recommended!
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