Conversational Common Lawmaking: Executive Suggestion and the Legitimacy of the Federal Common Law

Abstract

When judges make law, as opposed to interpret it, they operate at the edge of their constitutional and institutional competence. Constitutional and institutional reasons explain the lackluster legitimacy of the federal common law. On the constitutional score, no provision of the constitution unambiguously supports a judicial power to make law. Judicial lawmaking also appears to thwart the Constitution’s preference for lawmaking by authorities directly accountable to the people. Institutional considerations fail to improve the picture. That federal judges excel at applying the law says little about their skill at making it. Not only do federal judges lack experience as lawmakers, but they also lack the proper tools, particularly the ability to gather the kinds of information necessary to make decisions based on policy rather than law. The executive, by contrast, fares far better in the field of lawmaking. For one, the Constitution provides the electorally accountable executive with a principal role in the lawmaking process. Institutionally, the executive commands an array of entities tasked with analyzing and defending federal interests - the interests at the center of the federal common law. Headed by a unitary figure, the executive is able to translate its preferred policies into nationally uniform rules, something the federal judiciary - itself headed by a Supreme Court that rarely hears more than 75 cases a year - struggles to accomplish with any regularity. From this comparative analysis, one might gather that the courts could gain much from interacting with the executive in common law cases. But the courts have yet to make this move. Instead, the courts often do not often enlist the executive in the common lawmaking project, a situation this Note refers to as non-conversational lawmaking. The courts truly would gain from leveraging the expertise and experience of the executive in cases concerning the common law. This Note invites the courts to begin this interbranch dialogue, which this Note calls the common law conversation. To garner maximum efficacy, and to avoid threatening the judiciary’s independence, the conversation must be carefully calibrated. The two corollaries of conversational lawmaking should guide the exchange. First, the courts should invite the executive to submit the reasoned and consistent opinion of a high-level official in cases involving the common law. Executive suggestions would receive the level of respect merited by their persuasive power, as opposed to reflexive deference. Second, the executive’s decision not to appear generally should weigh against the invocation of the common law.Conversational lawmaking, guided by these two principles, offers great potential. Executive input could provide vitally useful information about the nature of federal interests and the most effective means of protecting them. Conversational lawmaking would also offer greater protection to the democratic decisions of the states. The second corollary would serve that interest especially effectively by construing the executive’s non-appearance against the creation of the common law. More broadly, executive officials are perhaps more likely than the courts to take pro-federalism stances in common law cases. On an institutional level, the executive is also best equipped to know when state laws actually infringe on federal prerogatives. In these and other ways, dialogue-based lawmaking would enhance the legitimacy of the common law.