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Auctioneers (along with the public) are regulated by law here in the United States. Where does that law come from? Generally, our government at the federal and state levels is comprised of three (3) entities — the legislative, executive, and judicial branches.

Again, generally, each of those branches can make law — the legislative branch is charged with creating laws, the executive branch often makes rules (additional laws) and the courts interpret laws — often in effect making new case law.

I would submit that auctioneers should pay attention to all of these laws and rules in order to protect themselves and their clients. Often a particular law or rule will apply directly and otherwise can provide good guidance for better behavior.

For instance, your state supreme court might rule in a certain fashion which would affect you directly, while another state supreme court in another state might rule in a certain fashion providing you good guidance. In essence, there’s always been required actions and otherwise good ideas for behavior.

Case law has always been a hot topic. People will essentially ask “How can the judicial branch make law? They are supposed to interpret the law, not make law.” These types of questions have been posed particularly regarding the Supreme Court of the United States.

The somewhat famous United States Supreme Court case Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) held that there is no federal general common law and the Court could only create laws [federal common law] regarding matters governed by the Federal Constitution or by Acts of Congress.

As a result, it was held by some that the Congress can not “delegate” law-making to anyone else — or if they did, would have to provide some intelligible principle (or be interlinked to some other inherent power) to guide the delegation. In other words, could Congress tell the Executive branch to make further laws concerning a recently enacted statute?

Yet, others argue that in regard to the Executive Branch and the Supreme Court of the United States, that they both have considerable “inherent powers” to make law. This apparently is true, as they both do — just consider how various governors recently shut down states, thus making law? Of course, others argued those governors …

One such great discussion on this topic is in an article by Emory Law Associate Professor of Law Alexander Volokh https://law.emory.edu/elj/content/volume-66/issue-6/articles/judicial-non-delegation-inherent-powers-corollary-federal-law.html. He seems to hold the federal executive branch and judicial branch both have considerable law-making capacity — either explicitly or implicitly.

Dr. Volokh earned his BS from UCLA and his JD and Ph.D. from Harvard University. Maybe most notably, he clerked for Supreme Court Justices Sandra Day O’Connor and Samuel Alito. He would probably know something about how the Supreme Court works.

Another view is held by University of Virginia Law Professor Caleb E. Nelson https://virginialawreview.org/sites/virginialawreview.org/files/Nelson_101-1.pdf who holds that the federal courts have very limited (if any) rights to create common (unwritten) law.

Professor Nelson is a graduate of Yale Law School and clerked for Supreme Court Justice Clarence Thomas. He too would probably know something about how the Supreme Court works.

The other issue would be: is federal (or other) common law retroactive or only prospective. In other words, if a law is passed on May 1, 2017, does it apply to situations prior to May 1, 2017, or only to circumstances on/after May 1, 2017? What about May 1, 1917? What about May 1, 1817? Fortunately, some laws specify their applicability.

Typically any valid case law stands until it is overruled by subsequent valid case law or statute. You would only have to consider our country’s most stark example of Plessy v. Ferguson, 163 U.S. 537 (1896) which was the law of the land until Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) — a horrific 58 years in our history.

Here’s hoping the current climate up until … who knows when … isn’t the auction industry’s most horrific years in our history, and it doesn’t take a Supreme Court of the United States case to get us all to a better place.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.