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Federal Courts


Federal Common Law and Permissible Lawmaking

Learn about the substance and application of federal common law in federal courts and the areas in which federal courts are permitted to make federal common law.


I.          Introduction

The term common law is generally understood to mean judge-made law. In other words, common law is law derived from judicial decisions rather than from legislative enactments. Despite the fact that separation of powers vests lawmaking in the legislative branch, the judiciary’s power to make law has been recognized in a wide, and somewhat miscellaneous, variety of subject matters.