Buffalo Environmental Law Journal
First Page
59
Document Type
Article
Abstract
United States Supreme Court Justice Clarence Thomas erred in his concurrence to Gamble v. United States when he derived his “demonstrably erroneous” standard of stare decisis because he overlooked a significant portion of federal law: federal common law. In Gamble, Justice Thomas argued for a weak standard of stare decisis under which the Supreme Court would overrule any “demonstrably erroneous” precedent that is contrary to our written laws, regulations, and Constitution. This standard may be functional when applying positive law, but it simply cannot be maintained when confronted with matters of federal common law. Were Justice Thomas’ “demonstrably erroneous” standard to be adopted, it would leave a void in the Court’s jurisprudence. Justice Thomas derived his Gamble standard using tools of originalism. The goal of this Article, therefore, is to deploy those same tools to fill the gap by deriving a specific standard of stare decisis for reviewing and applying federal common law.
Despite the declaration in Erie Railroad v. Tompkins that “there is no federal general common law,” vestiges of federal common law remain and carry immense authoritative weight. Most recently, in November 2021, the Supreme Court extended the federal common law doctrine of equitable apportionment to apply to groundwater in deciding an interstate water dispute between Mississippi and Tennessee over a shared aquifer. Given the enormous number of interstate aquifers and diminishing water reserves, this decision by the Court has the potential to create a tremendous amount of litigation about underground interstate water resources. It is essential, therefore, that the Supreme Court decided this case in accordance with a stare decisis standard fit for federal common law. This Article concludes by applying the newly derived federal common law stare decisis standard to Mississippi v. Tennessee.
Recommended Citation
Eric P. Leis,
Federal Common Law Stare Decisis and the Doctrine of Equitable Apportionment,
30
Buff. Envtl. L.J.
59
(2024).
Available at:
https://digitalcommons.law.buffalo.edu/belj/vol30/iss1/2