Revisiting the Scrap Heap: The Decline and Fall of Smith v. F.W. Morse & Co.

[Excerpt] "One of the more difficult tasks facing a federal court is trying to predict how a state’s highest court would rule on a question of law it has not yet addressed. That difficulty is well illustrated by the history of Wenners v. Great State Beverages, Inc., and in particular, the interpretation of that opinion contained in Smith v. F.W. Morse & Co. [ . . . ] This article begins with a close examination of Wenners and the two opinions on which Wenners relied for its now-canonical statement of the relationship between statutory and common law remedies. I continue with a discussion of Smith and the two opinions that Wenners purportedly consigned to the scrap heap. The next section explores the two distinctly different shadows cast by Wenners, one in the United States District Court for the District of New Hampshire, the other in the New Hampshire Supreme Court.

I conclude by suggesting that, in light of Bliss v. Stow Mills, Inc., the scrap heap may be due for a changing of the guard, with Smith replacing Godfrey.”