As one of the few people in my law school class who is an enthusiastic defender of Frank Easterbrook's Statutes' Domains, 50 U.Chi.L.Rev. 533 (1983), I was startled but pleased to read Caleb Nelson's newest article, The Persistence of General Law, 106 Colum. L. Rev. 505 (2006). It is essentially a sequel to Easterbrook's article (although it is also much more than that). If you had told me six months ago that the federal common law and state choice-of-law doctrine combine to explain some of the more vexing and persistent questions of statutory construction, I would have been confused and excited. Now I am simply excited.

In a nutshell, there is still a general law, notwithstanding and not contrary to Erie Railroad v. Tompkins. It is mostly found rather than created. And it helps judges determine when a judge should pick up a federal statute to answer a tough question and when he or she should simply put it down to ignore it.