Samuel L. Bray, University of Chicago Law School, and Christian R. Burset, University of Pennsylvania Law School, have posted Why General Law?
It has been almost a century since the Supreme Court said in Erie, "There is no general federal common law." But the general law is in the middle of a controversial revival. Instead of siding with the adherents or detractors of general law, this Essay explores why general law emerges, and why it disappears. Three episodes of the emergence of general law are considered: the rise of general law in the late-eighteenth century British Empire, the rise of general law in the early American Republic, and the rise of general law in twenty-first century originalist and textualist scholarship. In each of these episodes, general law is a solution to a problem of missing law. The law it provides is formally acceptable, abstract, and locally defeasible. These characteristics make general law valuable, but they also tend to make it temporary, as it provides the scaffolding for the construction of a more permanent legal regime.--Dan Ernst
