The New General Common Law: The Past as Future

Abstract

This 2004 paper continues to work out the body of thought eventually more fully realized in my A General Theory of Governance (Wm & Mary L. Rev. 2013). An authorized draft of the 2013 paper is now also available on SSRN, replacing a poor and heavily cut transcription. This earlier work was written in preparation for an AALS section talk. It argues that Erie is better understood as a specific example of a more general underlying theory. By 2004 the need for better theory had become pressing, given late revisionist scholarship urging a return to pre-Erie understandings. The ironies of the revisionist position are discussed and understood as an attack on American legal positivism. Erie’s power rationale is stated in more general terms, and Erie is understood as a requirement of due process.