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Michael S. Green (William & Mary Law School) has posted Federal Common Law Permissions and Federal Noughts (William & Mary Law School) on SSRN. When a state's courts have a practice of not providing plaintiffs with relief — because no...

The Statute, Its Scope and Basic Standard Section 421(k) of the Federal Tort Claims Act excludes from its coverage "any claim arising in a foreign country."' The Foreign Claims Act which was passed by the 77th Congress and amended by the 78th Congress has specific application to foreign countries, including places located therein which are under the temporary or permanent jurisdiction of the United States. Court test of the territorial scope of the Federal Tort Claims Act arose in a series of cases decided in 1948, culminating in United States v. Spelar, where the issue of possible foreign coverage was definitely ruled out. As a result of the foregoing cases, conflict of laws problems involving the domestic law of foreign nations do notarise in the administration of the statute. Of course, Alaska, the Canal Zone, the Virgin Islands, Territory of Hawaii, Puerto Rico, Guam and all island possessions of the United States fall within the coverage of the statute.

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of the federal common law of foreign relations–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional basis for the federal common law of foreign relations have eroded. In an important new book, The Law of Nations and the United States Constitution, Anthony J. Bellia, Jr. and Bradford R. Clark argue that the Constitution itself requires courts to apply customary international law in these two areas. Their argument fails to convince. A better alternative is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy.

The Superfund Act (CERCLA) was passed in 1980 to overcome deficiencies in previously enacted federal legislation. Although CERCLA authorized the government to recapture as much of the costs incurred in cleaning hazardous waste sites as possible, there were no specific guidelines for apportionment of these costs among multiple polluters. In their effort to enforce CERCLA, federal judges have exercised broad policy-making powers, & have interpreted CERCLA as a strict liability statute that creates a joint & several liability for responsible parties. Accordingly, the federal courts have developed a uniform federal common law for hazardous waste liability. 9 References. HA