The reading list: "Justice Ginsburg's Common Law Federalism"

David L. Franklin, "Justice Ginsburg's Common Law Federalism

Abstract:
This essay examines an often-overlooked facet of the federalism debate in which Justice Ruth Bader Ginsburg has pursued a distinctive approach: the role of the state-court common law judge in our federal system. In a series of majority and dissenting opinions, Justice Ginsburg has made clear that she places an exceptionally high value on the capacity of common law judges to render justice and to provide effective remedies to injured parties on a case-by-case basis. Although she acknowledges that Congress has virtually unlimited power to supplant or override this traditional judicial function, she insists upon a clear and unambiguous statement of congressional intent before countenancing such a result. Justice Ginsburg's vision of the common law judge as a guarantor of individualized justice informs and reflects her view of the law more generally. She draws a relatively sharp divide between the realms of common law and positive law and, more than any other justice on the current Court, conceptualizes common law regimes such as contract and tort as serving primarily remedial rather than regulatory purposes.