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I’ve seen reference to the Supreme Court of the United States (the Court) and “common law” rulings, and that decisions by the Court are not binding authority as to the meaning of state law, thus possibly of interest to auctioneers.

Our question today is perhaps more general, in that we wonder if the Court can tell an auctioneer what to do, or what not to do? We think the Court has that authority — independent of any other federal or state law, and thus possibly invalidating or modifying state law.

Our research stems from a paper by Professor of Law Emeritus Richard W. Bourne (1943-2014) (University of Baltimore School of Law Volume 12, Issue 3 Spring 1983 titled “Federal Common Law and the Erie-Byrd Rule.” That entire paper can be accessed here which we encourage you to read: https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1328&context=ublr.

At the conclusion of Bourne’s analysis, we note these conceptual statements pertinent to our stance (with emphasis added.) Again, reading the entire paper is advised.

Proper understanding of the relationship between the new federal common law and the Erie doctrine provides indirect but compelling support for the view that it is appropriate to take seriously the doing justice function of the federal courts and to, on occasion, override state rules which interfere with the function …

… Clearfield Trust Co. v. United States and Textile Workers Union of America v. Lincoln Mills, warrant the conclusion that in certain cases there is both federal judicial power to adopt federal substantive rules and, in a proper case, to have these rules preempt the operation of conflicting local law

… Use of federal common law as a basis for preempting the operation of state law in the service of federal procedural interests is not inconsistent with the new federal common law, but merely a predictable, entirely congruent, extension of its principles. The Erie-Byrd doctrine thus becomes but a branch of the larger corpus of federal common law aimed at resolving conflicts between federal and state policies. In Byrd, of course, the positive law background which influenced but did not command the operation of federal common law was procedural –
the seventh amendment and the body of legislation establishing the federal courts …

… Byrd’s federal common law is not some illegitimate “ghost of Swift… still walking abroad. Instead, it is an entirely legitimate correlative of the doctrine of Clearfield Trust and Lincoln Mills, their antecedents and progeny.

Our take (as an auctioneer and not as an attorney) is that federal courts — including the Supreme Court of the United States, can indeed make rulings that affect state law and thus auctioneers operating in those states.

So, if the Court ruled that auctioneers cannot take fictitious bids, could that possibly affect auctioneers? If the Court ruled that because property was open for inspection, an “as-is” clause was enforceable, could that possibly affect auctioneers? If the Court ruled … these are my questions?

It would appear to us far more important than deciphering the meaning of state law, the Court (and any federal court, possibly) can invalidate, modify or overrule state law.

Professor Bourne held (in part, told in third-person) with a link in this paragraph to an analysis by Edward H. Levi Distinguished Professor of Law at the University of Chicago David P. Currie (1936-2007):

From their first year in law school through their careers, attorneys have been mystified by the twists and turns of the Erie doctrine and the seemingly incompatible unfolding of what Judge Friendly labeled the “new federal common law. ” The author attempts a fresh reconciliation through a review of both bodies of law. He concludes that in areas not directly covered by either the Constitution or federal statutes, federal courts are authorized to resolve conflicts between federal and state rules through application of a federal procedural common law in much the same way that they have worked to resolve conflicts with state policy in areas of federal substantive concern.

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.