The Limits of Empiricism: What Facts Tell Us: Comments on Daniel Keating’s ‘Exploring the Battle of the Forms in Action’

The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and with specific reference to Professor Keating’s fine contribution to the literature on U.C.C. section 2-207. I applaud Professor Keating’s efforts to uncover the facts surrounding the implementation and effectiveness of section 2-207. I agree with his observation that much of the literature in commercial law, and on section 2-207 in particular, simply assumes a worldview that may or may not be consistent with the way the world is. That said, I want to suggest that it takes more than knowledge of the way the world is to know what to do with section 2-207. While I disagree with some of Professor Keating’s conclusions, I believe he makes a valuable contribution to the continuing discussion of one of the most nettlesome provisions of the U.C.C. Finally, I shall comment briefly on the latest revision of section 2-207, which looks quite promising.