When Federal Law Goes Unnoticed: Assessing the CISG's Applicability Across U.S. Courts Based on an Empirical Research of Decisions from 1988 to 2020 |
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| Authors: | Carolina Arlota Brian McCall |
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| Affiliation: | 1. Carolina Arlota is an Affiliated Faculty at the University of Oklahoma, College of Law and an Associate Research Scholar at the Sabin Center for Climate Change Law, Columbia Law School.;2. Brian McCall holds the Orpha and Maurice Merrill Chair in Law at the University of Oklahoma, College of Law. We would like to thank Professor Darla Jackson, Professor Joel Wegemer, and Leslee Roybal for their legal research and assistance. We acknowledge the excellent work of Erika Paul, who coordinated and gathered data with fellow RAs, namely, Alexa Ryel, Jacob Black, Mallory Stender, and Nicholas Muñoz. In addition, we are grateful to Claire Curry, from the Data Analytics, Visualization & Informatics Syndicate (DAVIS) at the University of Oklahoma, whose outstanding work and expertise were instrumental for our empirical analysis. Finally, we greatly appreciate the helpful comments of Professors Jeff Boles, Susan Park, and anonymous referees. All mistakes are exclusively ours. |
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| Abstract: | The United Nations Convention on Contracts for the International Sale of Goods (CISG) has reached the level of acceptance that it can be recognized as the face of international sales law. Over a century ago, the late Roscoe Pound drew attention to the dichotomy between the law as written and the law as experienced in practice. The law of the CISG “on the books” is the law of the United States. With the growth of international trade, one might expect its importance to grow in the realm of law “in action.” This article explores the CISG in action in U.S. courts during its almost four decades of being the law on the books in the United States. To this end, the authors built an original dataset based on their Westlaw search of all decisions mentioning the CISG across all U.S. federal and state courts from 1988 (when the CISG entered into force) through 2019. The dataset provides unprecedented insights into: (1) how parties raise the issue of the applicability of the CISG, (2) how courts have ruled on the Convention's applicability, and (3) the provisions of the Convention that appear most frequently in these disputes. This article empirically assesses, through logistic regressions, which factors are statistically significant for predicting if a court will apply (or decline to apply) the Convention to a disputed transaction. Finally, the article highlights many ways in which the law in action may not be as robust or comprehensive as it appears on the books. |
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