Home > Action, Law, Music > The Federal Common Law Blues

The Federal Common Law Blues

December 9, 2009 Leave a comment Go to comments

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.

Derek Trucks: Blues Interpreter and Innovator

Categories: Action, Law, Music
  1. jjm
    December 11, 2009 at 9:56 am

    the blues are a ritual. 12 bars, 3 chords, lots of repetition. and maybe shared rituals are better at creating community than shared values?

    • AD
      December 11, 2009 at 2:14 pm

      The common thread between the three things– Swift-era federal common law, blues, and community– is process. That’s the focus of the post: the process by which participants discover, enunciate, and develop shared values. A particular ritual could itself be a shared value. It could also be a means to an end; for example, as a tool in that process of uncovering, realizing, and developing. Additionally, once something becomes ritual-ized, the ritual can serve to enshrine, refine, develop, or propagate a value or set of values.

      You might be right that rituals are the best way to create community, but the process of community creating and strengthening is about realizing shared values. Values, and not merely rituals, are the foundation of community.

      Yer blues, John…

  2. jjm
    December 11, 2009 at 3:34 pm

    Ritual is process, and methodology. Let’s stick with the blues. People from diverse backgrounds, who hold diverse beliefs, might sing and play the blues together. You could argue that these diverse musicians share a belief that the blues are a good and worthwhile musical form, but this is a specious value to share, and it seems more interesting to consider the ways in which the blues can bring together folks who don’t share values. Singing songs builds community, in church or at a concert. Reciting a creed together means more for community than what the creed says.

    Likewise, the rituals of the courtroom outweigh the content of any decision. As much as the Supreme Court might determine that there are unenunciated principles underlying common law decisions, it is the process of wearing robes, sitting on benches, hearing cases, writing decisions, etc. that keeps the law going and gives it community building power. Right or wrong, agree or disagree, process is the thing.

  3. AD
    June 30, 2010 at 8:27 am

    Jazz Backstory yesterday posted excerpts from interviews with trombonist Benny Powell, who died last weekend. At one point, he discusses the importance of racial heritage to the story of those “interpreters” mentioned in the second paragraph of the above post:

    “Now if you go into the non-racial thing then you’re disrespecting my heritage because you see the Blues came from people being whipped and beaten and all of that. I know we’d all like to forget about that, but I think it was because of that — I have a contention, no great art is ever created by happy people. It’s always adversity that creates art. So when I do my lectures, I start off my lectures with Negro spirituals because they chronicle the experience, which is “Nobody Knows the Trouble I’ve Seen,” and then I tell the people about the voice of being cut off. Anyway, it’s a deep story behind it, and jazz is being left out.”


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