Tuesday Tips: New and Noteworthy on SSRN
Neil Duxbury
The General Law Renaissance and the Common Law
Abstract
Of late, there has emerged an important body of legal scholarship sympathetically reassessing the concept of “general law” – unwritten legal norms discoverable by courts. This article shows that these reassessments run up against a problem when the general law in question is common law. The problem arises from a question: what makes common law valid as law in the first place? In England, the answer is that common-law norms are presumed to have governed since the beginning of English legal memory in 1189. That answer is strained, even in England. In the United States, it makes no sense. No American legal custom runs to 1189. The English validity test simply cannot be satisfied here.
This doesn’t pose a difficulty at state level, where statutory and other modes of reception supply an alternative, positivist foundation for the common law. The difficulty is federal. Erie Railroad v. Tompkins held that federal courts cannot discover a body of general law and use it to displace state law. General-law revivalists challenge Erie’s premises. This article argues that the challenge underestimates the difficulty. Absent federal-legislative or constitutional adoption, there can be no valid common law as a category of substantive general law, because the test that makes common law authoritative as customary law cannot be met on American soil.
Rather than discover common-law rules, federal courts, this article contends, do something significantly different: they extract underlying principles from the common-law tradition and fashion new rules from those principles. That is judicial lawmaking, but lawmaking from principle, not from nothing. Attentiveness to this distinction matters more than ever now that general law is back on the agenda.
Jennifer S. Martin
Remedial Pathways, Hybrid Transactions, and the Uniform Commercial Code
Abstract
The 2022 Amendments to Article 2 of the Uniform Commercial Code provide enhanced recourse to its remedial structure by bringing at least the goods aspects of hybrid transactions, those involving goods and some other component, such as services, a lease, or other tangible or intangible property, within the scope of Article 2 to some degree in nearly all cases. In general, access to Article 2 remedies is limited by § 2-102’s limitation that there be a transaction in “goods,” things that are moveable at the time of identification to the contract. Prior to the 2022 Amendments, most courts historically applied a predominant purpose test to determine if the contract was one for goods and within the scope of Article 2, including its remedies provisions. This was an all or nothing proposition, either the transaction was within Article 2 or outside of its coverage. As such, hybrid transactions that involved goods, but were not predominately ones for the sale of goods, have been subject in most cases to common law contract remedies, which differ substantially from those of Article 2, and were completely excluded from access to Article 2 remedies. This Article seeks to provide a perspective on the specific inclusion of hybrid transactions under amended Article 2 by examining remedial outcomes under both the common law of contracts and Article 2, unamended and amended. It supports the approach of the amended Article 2 in providing access to Article 2’s remedial pathways irrespective of the structure of the sale of goods and provides a careful look at the application of party rights in the event of breach and attempts to guide those endeavoring to apply Article 2 remedies in the event of breach.