Common Law Within Three Federations

Abstract

The three oldest common law federations: Australia, Canada and the United States of America, have quite different conceptions of common law, and have applied quite different structural approaches to its development. In particular, each federation resolves the following two basal questions differently: (a) Are there distinct bodies of subnational common law? (b) Is there a distinct body of federal common law?

While the common law of California is unquestionably a distinct body of law, there is no distinct body of law known as the common law of British Columbia or the common law of Queensland. However, Canada mirrors the United States and differs from Australia in having a distinct body of federal common law, and while the North American bodies of federal common law are interstitial rather than general, they have the unexpected property of overriding subnational statutes.

This paper describes those divergences, how they came about, and why these issues continue to matter. The key to the first question is the structure of appellate jurisdiction, but the paper seeks to demonstrate that there are subtler considerations informing the result. There is no short answer to the why and how federal common law evolved or failed to evolve, but similar considerations continue to influence litigation to this day, not merely in questions of construction and the role of precedent, but also in the articulation of new rights, defences and immunities arising from federal law.

Keywords: federal common law, federal jurisdiction, comparative constitutional law, federalism, common law, Sosa, Lange, Bivens, precedent, appellate jurisdiction, state common law, provincial common law, subnational common law

JEL Classification: K10, K33, K30