The Case for Federalizing Rules of Civil Jurisdiction in the European Community

The European Community is an “incipient federal structure,” even if its scope of operation is limited in subject matter and its creation derives from “a network of treaties rather than [from] a formal constitution.” A federal structure at once protects, even nurtures, pluralism and coordinates the constituent units in the interest of a union. Federal legislation promotes the interests of the larger unit; a limitation of powers in the constitutive document preserves the integrity of the members. In the American federation, the United States Supreme Court defines the balance between the reach of state and federal law. The balance, moreover, shifts over time as new or different concerns call for accommodation. In so doing, the Court not only deals with direct attacks on state or federal legislation or with problems of interpretation (or gap filling) raised by new or different concerns, but also performs a creative function. In the fashion of a common law court, it develops the law either by creating “federal common law” or by declining to do so, in the latter case thus preserving or extending the applicability of state law. Even when it does develop federal common law, the Court may derive the new federal rule from state law rather than fashioning one anew.