The Federal Common Law Blues
In 1842, the Supreme Court decided Swift v. Tyson, 41 U.S. 1, and acknowledged the existence of an unenunciated federal common law that federal courts could discern and develop from abstract, unstated, unenumerated general principles and concepts of law. But see Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (overruling Swift). At least for the first 160 or so American years, therefore, there was some sort of background set of notions, some underlying set of principles, beliefs, feelings, influences, and strains rattling around in the ether, informing common law explication and development across the land.
In 1842, another background set of feelings, moods, notions, principles, and beliefs also was knocking around the ether. Unlike the federal common law’s judicial developers, the primary interpreters were not highly regarded and robe-clad, although most of them did have life tenure. Their sources for interpretation were not the writings of the Greeks, Germans, Scots, English, and French (although European influences would find their place later on), and their tools for transcription were not the ink well and paper; indeed, most were illiterate. Instead, they were drawing on the raw emotion of a life of slavery, using voices, hands, and instruments descended from their African heritage. While the Erie Court brought the general federal common law to a screeching halt in 1938, the American blues remain an unstoppable force to this day.
Many people have written about the blues, but it is a difficult genre to appreciate and approach in 2009 (or, in popular musical notation, NOW 32). It is difficult, in other words, to understand the bare foundation, when we are used to seeing the building’s ornate and increasingly esoteric façade. I came to the blues in a roundabout manner, after realizing that many of the songs I liked, across genres, had something in common. I couldn’t quite put my finger on it, but there was some common thread, or idea, or principle underlying these songs. Eventually, I found my way to the form and feeling of the blues, and began to dive deeper into the music’s history, carrying with me an appreciation of its more modern applications in pop, rock, and rock and roll, and gaining a more complete understanding of pockets like soul and R&B, and of the jazz I’d played and studied.
American blues eventually jumped the ocean and can now be heard all over the world, where new generations of musicians, who grew up in their own traditions, are reaching out into that same ether, trying to tap into the same currents, moods, forms, and temperaments.
There is a reason why, when the best musicians get together, the blues is the sonic plate du jour. For a one-off supergroup like the Dirty Mac, things are no different.
The federal judges in the Swift era never quite made it to drawing out all of the tenets and principles of the mystical federal common law before the Erie decision relieved them of that duty. With any hope, those operating on the basic blues forms will continue to search for new ideas and innovations and continue to reinvent the past. This process has a role in communities as well. There exists within the collective ether of most communities a set of customs, expectations, sentiments, feelings, and preferences generated over time. Stronger communities– those with longer histories, more significant attachments to place or space, or, perhaps, more homogeneous (defined broadly to include more than demographic factors) populations– may have a broader, more robust set of values, than newer communities. On the other hand, communities formed for a particular purpose may have a more well-defined set of values. What is important for the strength in community that is necessary for community perpetuation and growth, is a process through which members of the community recognize that they do share a set of values, however broad, and engage in a process of discovery and interpretation of those values.
The comments below are available for any topical thoughts, whether you’re interested in Swift and Erie, value definition and exploration in your community, or just somebody who’s into the blues.