This Comment seeks to examine the procedural issue presented by a conflict between the federal circuit courts. At issue in the split between on the one hand, the D.C. and Eighth Circuits, and on the other, the Eleventh Circuit, is the effect on existing federal common law when Congress enacts a statute covering the same substantive area of law. The question of the interaction between statutory and common law is a difficult one because all judicial power is, by necessity, limited. This Comment argues that the same policies underlying the reluctance of federal courts to create new common law also underlie the analysis of whether a statute has displaced the established common law even though the common law has a much greater vitality in the latter case than in the former. When Congress has created a comprehensive statutory scheme, the creation of new common law has the potential to upset that scheme. When Congress legislates against the background of established common law, on the other hand, it should be presumed that there was no intent to displace that law. Absent an explicit contrary congressional intent, the established common law should be seen as a complement to the congressional scheme. Otherwise, Congress might rely upon a background of established rules of decision when it creates its legislative scheme, only to find the plan upset when a federal court uses the legislation to eliminate those established rules.

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