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The Federal Courts' Gate-Keeping Function for Fixed and Invariable Evidence of Custom and Usage
The role of the trial judge in screening proffered custom and usage evidence has evolved with time and is now part of the gate-keeping function provided in the federal rules of evidence. This article traces some of the relevant background and discusses how the federal rules now guide the courts in the exercise of that function.
Reliable knowledge of the customs and practices of a particular industry can be useful in the interpretation of contracts, including those that provide insurance. See Appleman on Insurance Law & Prac. 2d '5.7 (2005); Richard A. Lord, Usage and Custom, in 12 Williston on Contracts '34:2 (4th ed. 2005). The roots of the doctrine stretch back to 13th and 14th century efforts by English jurists to incorporate the law of merchants (derived from customs) into the general common law. See generally Charles A. Bane, From Holt and Mansfield to Story to Lewellyn and Mentschickoff: The Progressive Development of Commercial Law, 37 U. Miami L. Rev. 351, 352-62 (1983). This English effort spread to the United States and eventually culminated in the creation of the Uniform Commercial Code, which both codified the law of merchants and left room for its development and expansion through the continued evolution of customs and practices. See Uniform Commercial Code '1-102. In keeping with the general view of the Code's primary drafter (Karl Lewellyn), the Code deals with questions of “custom” and “usage” as matters of fact instead of questions of law. See Bane, 37 U. Miami L. Rev. at 376.
Insurance law is not codified in this fashion. See Elrad v. United Life & Accident Ins. Co., 624 F. Supp. 742, 744 (N.D. Ill. 1985) (UCC does not apply to insurance policies). Insurance applications turn instead on common law guidelines and rules of evidence regarding their application. While the sprawling common law is vast, cf. Nicoll v. Pittsvein Coal Co., 269 F. 968, 971 (2d Cir. 1920), necessary and appropriate screening by the trial court serves the substance of that law and assures that admitted evidence is based on reliable information. Cf. Stephen A. Saltzburg, et al., 1 Federal Rules of Evidence Manual '104.02[2] (8th ed. 2002). The better view ' and the one plainly contemplated by the rules, is that the trial judge should determine at the outset whether the proponent of custom and practice evidence has demonstrated that the evidence is competent for consideration by the fact-finder.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?