Will Baude and the General Law

So something I hadn't really thought deeply about, I mean, I read about the general law in the past, of course, and I remember Erie from, we did it in Mike Paulson's class, actually, Erie in law school.

But I hadn't really appreciated how the general law was not really the same thing as the common law.

It was actually bigger than that, right? Because it had like law of nations, equity, kind of everything was in this general law.

Tell us what that means.

Yeah, and this is, I mean, figuring out what's in it is hard because it's uprooting omnipresence in the sky.

And so one way to do it is sort of by example.

So there were things like admiralty, which is not the common law, almost by definition, it's admiralty.

But there were general principles of admiralty.

Federal courts got jurisdiction in admiralty cases and everybody just expected them to apply these general principles.

There was the law of nations.

This is an era, you know, when law of nations was more like the fundamental principles contained in Vettel and Grotius and Pufendorf.

But these were sort of unwritten principles that lawyers were familiar with that sometimes could get into admiralty or related things.

There was the law of the law merchant was another important category like this.

It was sort of a form of international commercial law that had rules about commercial paper and, you know, all sorts of just like basic transactions.

And these were sometimes just described as like sort of a body of law.

Almost you could find it in Blackstone.

You expect any Anglo-American jurisdiction to interact with it.

But then it can include a lot of other principles, too.

So, you know, one of the places that sort of get controversial is that the general law did sometimes speak to questions of contracts or torts or all sorts of other things.

Right.

And so most of us today think of that as, well, like railroad.

It was a negligence lawsuit or whatever the cause of action actually was in that case.

But it can include all these other things.

Just to take a little bit of a side quest here, you said the law merchant.

Was that considered not part of the common law then, even up to that time? It was kind of this separate, almost arbitral body of law?