When Congress does not fully address the substantive law contemplated by a statute, federal courts have the responsibility to fashion a governing rule of decision according to their own standards-the conflict of laws rules of the forum. More precisely, the task of judicial legislation could be labeled one of interstitial lawmaking, of interpreting an indeterminate statute, rather than conflict of law. If subject matter jurisdiction is founded on a federal statute, and not diversity of citizenship, the source of law for the litigation is federal, and the rule of Erie R.R. v. Tompkins, that state law applies of its own force, is generally inapplicable. This jurisdictional grant over suits involving a federal question, function or program, however, is "not in itself a mandate for applying federal law in all circumstances." As the Court in Clearfield Trust Co. v. United States suggested, state law occasionally may be adopted as the federal rule when Congress has not given a specific directive. Federal courts have the option to incorporate or to displace state law in giving content to a controlling federal statute, but not without certain limitations. ...
The purpose of this comment is to examine the standards that have developed for resolving disputes over the supplementation of federal law in cases founded on a federal statute and related to an operative national program. The discussion will focus primarily on those considerations that move a federal court to impute to Congress an intention to absorb state law or to establish a uniform, nationwide rule in a given dispute. Specifically, emerging methodology will be applied to the Georgia Power Company condemnation cases for the Lake Wallace Project, as a means of evaluating a sampling of the manifold policies which support one selection of law or the other, in what is arguably a classic example of a "vertical" choice of law problem.
Lockary, Lillian Harris
"Interstitial Lawmaking: Uniformity or Conformity?,"
Mercer Law Review: Vol. 32:
4, Article 12.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol32/iss4/12