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In tomorrow's Federal Courts class, I'm teaching #SCOTUS's 1988 decision in Boyle—which holds that federal judges can displace state tort law in suits against government contractors even without an applicable federal statute or constitutional provision:
supreme.justia.com/cases/federal/…
supreme.justia.com/cases/federal/…
Justice Scalia routinely invoked his majority opinion in Boyle as one of his biggest mistakes on the Court.
(See, e.g., repository.law.umich.edu/cgi/viewconten…)
But what's especially vexing is how lower courts have subsequently _extended_ it, like the DC Cir. in Saleh:
pacer.cadc.uscourts.gov/internet/opini…
(See, e.g., repository.law.umich.edu/cgi/viewconten…)
But what's especially vexing is how lower courts have subsequently _extended_ it, like the DC Cir. in Saleh:
pacer.cadc.uscourts.gov/internet/opini…
As I explained last July, these cases are a powerful illustration that _all_ judges, liberal or conservative, have areas in which they're more comfortable engaging in "judicial lawmaking":
The more interesting question is which areas, and why.
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The more interesting question is which areas, and why.
/end
