Cite as: 520 U. S. 564 (1997)
Thomas, J., dissenting
silence evidences congressional intent that there be no state regulation of commerce). In other words, we presumed that congressional "inaction" was "equivalent to a declaration that inter-State commerce shall be free and untrammelled." Welton v. Missouri, 91 U. S. 275, 282 (1876). To the extent that the "pre-emption-by-silence" rationale ever made sense, it, too, has long since been rejected by this Court in virtually every analogous area of the law.
For example, ever since the watershed case of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), this Court has rejected the notion that it can create a federal common law to fill in great silences left by Congress, and thereby pre-empt state law. We have recognized that "a federal court could not generally apply a federal rule of decision, despite the existence of jurisdiction, in the absence of an applicable Act of Congress." Milwaukee v. Illinois, 451 U. S. 304, 313 (1981).9
The limited areas in which we have created federal common law typically involve either uniquely federal issues or the rights and responsibilities of the United States or its agents. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981). But where a federal rule is not essential, or where state law already operates within a particular field, we have applied state law rather than opting to create federal common law. See United States v. Kimbell Foods, Inc., 440 U. S. 715, 730 (1979) (rejecting "generalized
9 See also Atherton v. FDIC, 519 U. S. 213, 218 (1997) (rejecting the "judicial 'creation' of a special federal rule of decision" and noting that " '[w]hether latent federal power should be exercised to displace state law is primarily a decision for Congress,' not the federal courts" (citation omitted)); O'Melveny & Myers v. FDIC, 512 U. S. 79, 83 (1994) (rejecting, as "so plainly wrong," the contention that federal common law governs application of state causes of action brought by the Federal Deposit Insurance Corporation as receiver for a federally insured savings and loan); Milwaukee, 451 U. S., at 313, n. 7, 314 ("Federal common law is a 'necessary' expedient" resorted to only when the Court is "compelled to consider federal questions 'which cannot be answered from federal statutes alone' " (citations omitted)).
615
Page: Index Previous 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 NextLast modified: October 4, 2007