Tag: common law

Why Read Cases?

Some advice for law students

Legal education in the common law world revolves around reading cases. Perhaps a little less than in the past, but still. But why? And why should students spend time on reading cases in full, instead of finding short summaries? Especially now that (unlike, say, 100 or perhaps even 50 years ago) there are great textbooks that summarise whole areas of the law, and (unlike, say, 20 or perhaps even 10 years ago) online sources, some of them quite good, that summarise individual cases, and indeed short and sometimes plain-language summaries produced by the courts themselves?

Before I explain why, I mention a fundamental fact which students at the outset of their legal careers probably don’t think much about, understandably: your legal career, if that’s the one you choose, may well extend for 40 or even 50 years, and during this time the law will change a lot. Think about what the law was like in 1972, and what it is like now. How many statutes and even cases from back then are you encountering in your classes? Some, no doubt; perhaps quite a few if your lecturers are more historically-minded. But still. For lawyers who graduated in 1972 or 1982, almost all of the law they are applying now was made after they left law school.

In a superficial sense, law school cannot prepare you for this, because we don’t have time machines and cannot really guess what the law of the future will look like. So how do the lawyers who graduated in 1972 and 1982 manage? It’s because law school doesn’t only or even mainly teach you what the law happens to be at the moment in time when you go there. Instead, it teaches you the skills you need to understand the law as it develops over the course of your career. This is why law school is not just a trade school, but part of a university: it is doesn’t just teach you how to do something, but how to think.

Reading cases is one such skill, for (at least) three categories of reasons. The first has to do with learning what the law is; the second, with expressing oneself in the law’s language; the third, with solving problems like a lawyer. All of these, it is worth noting, apply across all areas of law ― nothing in what I will say here is specific to public law.

To begin with, you need to read cases to know what the law is because many of the most important legal rules and principles are not recorded in legislation, and are only given form, however imperfect, in judicial decisions. Moreover, even legislation seldom stands by itself. You need to know how it is interpreted and applied by the courts. Of course, you can pick up a lot about the cases decided in the past from the abovementioned sources ― textbooks, online summaries, etc. Maybe, from this perspective, you could get away with not reading cases in law school, though it’s not a good idea. These sources may be wrong, or, even more likely, they may be incomplete or slanted in one way or another. You want, as much as possible, to be able to judge for yourself.

And then, what happens when you graduate, and new cases keep getting decided? Suppose the Supreme Court decides a case that bears on an ongoing issue you are helping a client with. You cannot very well tell them to wait for a few months or even years until someone else does the work for you. You need to know how to read the case for yourself and update your advice to your client accordingly. Practicing to read and understand cases in law school is how you prepare for that.

Next, you need to read cases to write and speak like a lawyer. Like any profession, law has its own jargon. It can be peculiar. To be sure, law has become less attached to some of the more archaic English or even Latin words and phrases it used to be fond of ― though of course you may still need to be comfortable with them to understand older cases. But that doesn’t mean that lawyers now speak like any other educated persons. You need to know, for example, that you can have a claim at common law, or in equity, and not in common law or at equity. Why? I’m not sure there’s a reason. It certainly doesn’t make a whole lot of sense. But you need to know these things to establish a common language with your fellow lawyers and with the judges, without which you cannot be a full member of the legal community ― or an effective representative of your clients’ interests.

Reading cases is the most obvious way in which you will acquire this peculiar language. Textbooks and summaries often abstract it away in the process of distilling the cases’ holdings to single sentences or short paragraphs. They might help a little, but they won’t be enough. I suppose you might read statutes, but I’m not sure that’ll be as effective, and I’m certain it will be boring. (You should sometimes read statutes too, to know what they are like. But you don’t need to do it as much as with cases.)

Finally, and perhaps most importantly, you need to read cases to understand how lawyers and judges solve problems. In his famous report of Prohibitions del Roy, Coke CJ claims that he told James I that the King could not decide cases himself, instead of letting his courts do it, because

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.

While a lot in that report was made up, this idea was true in 1607, and it remains true today. The law has its own way of thinking through difficult questions, and being a smart person, which you are if you have made it to law school, isn’t enough to grasp it. In sports, you probably won’t be picked for a high-level team without some natural gifts. But you still need to train to become a great athlete, and not just someone who could have been one. It’s the same in law.

The cases are where you absorb legal reasoning. Textbooks and summaries focus on giving you the outcome, and not the step-by-step reasoning of the judges. Nor do they usually tell you which arguments the court found unpersuasive, or spend much time unpacking judicial rhetoric, which can be very useful if you are going to persuade judges: giving them ready-made arguments they can re-use will make them more likely to side with you. Lectures may go into such details from time to time, but they are too short to do it much.

Ultimately, there is no substitute for taking your own time and working your own way through judgments. Even if someone could learn all the legal rules that exist when they graduate law school without acquiring ― through long study and experience ― the skills that reading cases gives you, they would be useless to their clients within 10 years. And they’d still have 80% of their career ahead of them. You don’t want to be that person. The good news is that cases are often fun to read. They are stories, often interesting and sometimes well-told. The more you get use to reading them, the more attuned you become to the smaller details that can make them fascinating. And the sooner you start, the better you will be at it.

The Chief Justice and the Law

The CBA National Magazine’s blog has just published a blog post of mine that comments on the speech which Chief Justice McLachlin gave at the “Supreme Courts and the Common Law” symposium held at the Université de Montréal’s Faculty of Law last week. I argue that the Chief Justice misunderstands the history of the common law, and that this misunderstanding results in her believing that courts need no longer be constrained by precedent, doctrine, and perhaps even statutory and constitutional text in their quest for “truth and justice.” This leads me to ask:

Does the Chief Justice believe in (the common) law? All law means constraint, first and foremost for government officials ― judges among them. Constraining officials, as well as having rules announced in advance for citizens to follow, provides predictability. If judges do not regard themselves as bound by the law, the Rule of Law’s promise of limited government and certainty is an empty one.

The Chief Justice’s speech was, I confess, quite shocking to me. While I have never found warnings of judicial autocracy especially compelling, it illustrates the fact that all persons who exercise power, including judicial power, are liable to get caught up in the belief in their own importance to the world, and to dismiss any constraints on their world-saving actions as inimical to the greater good. When the Chief Justice retires within the next couple of years, I will not be sorry to see her go.

(La) Doctrine

What do legal doctrine and la doctrine have to do with each other?

I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”

The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?

Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”

But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)

That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.

However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.

The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

The Judges’ Law

Did you always want to know what my dissertation is about? Let me tell you!

I have occasionally mentioned the doctoral thesis I have been working on for the past four and a half years, and even posted a few tidbits (here, here, and here). But I don’t think I’ve ever even explained what the damned thing is about. Yet it is ― until I defend it, hopefully this spring ― after all, my “day job.” Anyway, I was recently asked to produce an abstract of the thing, and I figure that, having done so, I might as well share it. Here it is.

The Judges’ Law

As citizens of democratic polities we mostly share an ideal of self-government, according to which the laws under which we live ought to be made by legislatures which we elect and which act on our behalf. Yet rules articulated by courts in the course of adjudication―which I refer to as “adjudicative law”―form a non-negligible, and in common law jurisdictions a very significant, part of the law of the law of such polities. This is a study of these rules: of the context in which they are articulated, of their origins, and of their legitimacy in a democracy.

I begin by describing the environment in which adjudicative law emerges. First, I survey some constraints that judicial adjudicators face: a duty to attend to the arguments put forth by the parties, to decide the dispute, to do so in accordance with a general rule, to give reasons for their decision, and to uphold and preserve the law’s coherence. Second, I consider a number of characteristics of courts as institutions, including judicial independence, judicial training, and collective decision-making on appellate courts. Third, I review the rules of justiciability and evidence, insofar as they influence the articulation of adjudicative law.

I then examine the sources from which the rules of adjudicative law are drawn. After reviewing of the some academic writings on this point, I consider the reasons given by courts in a number of important, precedent-setting cases drawn from a variety of areas of the law. The main sources of adjudicative law I describe are underlying legal principles, social practice, and judicial fiat implementing a court’s policy judgment.
Having thus described some salient characteristics of adjudicative law, I turn to the question of its legitimacy in a democratic polity, focusing on four themes. The first is democracy, in connection with which I address the issue of the democratic deficit of adjudicative law and the argument that it can claim a democratic legitimacy that does not rest on the ballot box. Second, I consider the quality of adjudicative law, its fitness for purpose. Under this heading, I assess some issues with the courts’ institutional competence, on the one hand, and the claims that adjudicative law stands in a privileged relationship with reason, on the other. Third, I address the question of whether adjudicative can satisfy the requirements of the Rule of Law. Finally, I consider the relationship between adjudicative law and the past, focusing on the principle of stare decisis.

The outcome of this re-assessment is a nuanced one. Adjudicative law suffers from undeniable weaknesses, when compared with legislation―or at least with legislation as it might be, and not necessarily as it actually is. But the gravity of these weaknesses varies across areas of the law and depends on the specific institutional arrangements used in each legal system. It is best, I conclude, to refrain from across-the-board condemnations or endorsements of adjudicative law, and consider each case in its own context and on its own merits.

We are, I explain in conclusion, bound to live with adjudicative law, flawed though it may be. Yet its flaws can be addressed to some extent, even within the framework of our current institutional arrangements. These remedies, which I briefly outline, will not make the problems of adjudicative law disappear, but they may somewhat improve the situation. Since adjudicative law is with us to stay, even slight improvements would be worthwhile.

 

Portalis versus Bentham (Part I)

A couple of years ago, I wrote about Jeremy Bentham’s pamphlet “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145), most famous ― or infamous ― for its “dog law” diatribe against the common law. In the last part of the essay, Bentham called for the turning of “what there is good of common law … into such that “what is common in both to every class of persons were put into one great book (it need not be a very great one) and what is particular to this and that class were made into so many little books,” (149) written in simple, accessible terms the contents of which everyone would learn at school and at church. The countries that have taken Bentham’s advice and codified their law, however, found that this was not enough to “deliver [them] out of the clutches of the harpies of the law.” (150) But then, unlike Bentham, they probably did not expect that it would have any such effect.

Jean-Étienne-Marie Portalis, one of main drafters of the French Civil Code (a.k.a. the Code Napoléon), took a rather more realistic view of what his and his colleagues’ work would accomplish for simplifying the law and making it more accessible. He also had a much more sophisticated view than Bentham ― or those who followed Bentham in deriding “judge-made” law ― had of the judicial role in developing and expounding the law. He is not, I think, well known at all in English-speaking world, so it is worth presenting some of the ideas he develops in the “Preliminary Address on the First Draft of the Civil Code” which he wrote and delivered on behalf of his co-authors. (The original French version is available here, by the way, and an explanatory note, here; and kudos to the federal Department of Justice for having put it online ― though I’ll use my own translation, in what follows, and not the government’s. Google Books also has a freely-accessible volume in which the address is printed along with other materials relative to Portalis’s work on the Civil Code.)

In this post, I will cover some of Portalis’s views on the role of legislation and that of jurisprudence generally. In a subsequent one, I’ll talk in more detail about his views on adjudication, including those on what for Bentham was the “dog law” problem of case law. I might also have a third post dealing with some of Portalis’s ideas that belong more to the realm of political than that of legal philosophy.

Unlike Bentham, Portalis had a respectful attitude to the past and to the law which it had bequeathed to his generation ― even though he was engaged in the task of reforming this law. “What a task it is,” he exclaimed,

to draft the civil laws for a great people! The work would be beyond human strength, if it consisted in giving to this people entirely new institutions, and if … one disdained taking advantage of the past’s experience, and of that tradition of good sense, of rules and maximes, which came to us, and which forms the spirit of the centuries.

Rather like Bentham, in some moods, Portalis was a conservative, or perhaps a Hayekian avant l’heure, cautioning that “one must be sober of innovation in matters of legislation, because while is possible, in a new institution, to calculate the advantages that theory offers us, it is not possible to know all the drawbacks which only practice can discover,” and going so far as to claim that only geniuses with all-encompassing minds are entitled to “propose changes” to the laws. Most changes that are actually made into law turn out to be failures.

At most, the drafters of a code could try to simplify the law. Yet even that worthy task is a dangerous undertaking, because it runs the danger of “leaving citizens without rules and without guarantees of their greatest interests.” Unlike Bentham, who thought that the law could be kept short, simple, and accessible, Portalis warned that short laws are never enough for growing and complex societies. The fantasies of reducing the law to the size of the Roman Twelve Tables ignore all the subsequent development of Roman law. And it is doubtful that even a simple legal code would be accessible to every person in society.

Moreover, the role of the drafters of a civil code is not to “foresee everything.” Indeed, “wishing to settle and to foresee everything” is a “dangerous temptation,” which Portalis was proud of having avoided. Society, Portalis argued, is too complex for legislation to regulate everything in advance. The legislator’s foresight cannot be all-embracing; it cannot anticipate the growth and changes of society; there are things that we can only learn from experience. Yet

statutes, once drafted, stay as they were written. Men, however, never rest; they always act; and this movement, which never stops, and whose effects are variously modified by the circumstances, throws up at every moment some new combination, some new fact, some new result.

Portalis added that “experience must fill one by one the blanks that we leave. The codes of the peoples are made over time; but, strictly speaking, they are not made.” Again, this is a spirit which, if we are familiar with it at all, we in the English-speaking world mostly associate with Hayek ― presented, in clear terms, 170 years before Law, Legislation and Liberty.

And how is law to be adapted to this incessant movement of human affairs? It is the judges, ultimately, who must do it. Legislation, says Portalis, can only fix the general principles, while “it is the judge and the lawyer who, imbued with the general spirit of the laws, must direct their implementation.” While Bentham thought the very existence of a common law developed ― or, as he claimed, “manufactured” ― by judges a calamity, Portalis thought it an inextricable part of law-based government. (Portalis uses the expression “nations policées,”which the federal government’s translation renders by “civilized nations,” but I don’t think that the emphasis is on civilization so much as on “a government of laws, not of men,” or at least “rule by law” is not “rule of law”; Portalis contrasts the nations he has in mind with Turkey, which was not so much uncivilized as ― in his telling anyway ― lawless.) In polities where the law prevails,

there emerges, beside the sanctuary of statutes, and under the legislator’s watch, a store of maxims, decisions, and doctrine, which works itself pure every day through practice and the clash of judicial debates, which always increases with all acquired knowledge, and which has always been considered to be the true supplement of legislation.

Portalis adds, later on, that even though the legislature must “keep watch over the case law,” and can correct it, it is necessary for case law to exist.

The idea of the law working itself pure is, of course a familiar one to common lawyers, or at least to the sort of people whom others, more cynically minded, might see as common law romantics. It is striking to see it expressed, in those very terms (Portalis uses the word “s’épure“), by the great French codifier. But then, it’s not exactly a new observation that it sometimes by looking at the thoughts and the customs of others that we learn more about our own, and perhaps even come to appreciate them in new ― or in old but forgotten ― ways.

UPDATE: I decided to do some extra research after having hit the “publish” button, and came across an article by Michel Morin called “Portalis c. Bentham ? Les objectifs assignés à la codification du droit civil et du droit pénal en France, en Angleterre et au Canada.” I haven’t read it yet (I will before writing my next post on Portalis), but it seems very interesting. Most importantly, however, I wanted to acknowledge having been beaten to this post’s title ― and plead guilty to haste, but not to copying.

Seasonal Thoughts

‘Tis the season for, among other things, lots of food, lots of drink, and legal philosophy. Because it’s always the season for legal philosophy, right? It’s also the season for being lazy. So instead of a serious blog post, here are two passages I’ve recently come across ― one about food, the other about drink, both about jurisprudence.

The first is from a very entertaining piece by A.W.B. Simpson, “Legal Iconoclasts and Legal Ideals”, published way back in 1990 (58 U. Cincinnati L. Rev. 819). Prof. Simpson discusses “iconoclast” idea that law, or the common law at any rate, is just whatever the judges say it is ― and they can always say that it is whatever they like. This idea, which prof. Simpson traces to 1345 ― and which was probably out there earlier than that too, ― was more recently presented by the “critical legal theorists,” (a.k.a. the “crits”) as the claim that law is “inherently indeterminate.” As the crits tell the story, prof. Simpson explains,

indeterminacy springs from the fact that doctrine is neither comprehensive, internally consistent, nor fully directive, nor does it provide in advance for the circumstances in which it can be changed.

And then he delivers the tasty punchline, for the sake of which I’ telling this (admittedly old) story:

I suppose the same could be said of any system of human thought whatsoever. Like cooking. Yet it was, some would think, an understanding of the principles of la cuisine that enabled a chef, in trying conditions, to produce Chicken Marengo. (830)

The drink-related quip I wanted to share belongs to one of the “iconoclasts” whom prof. Simpson describes, Robert Rantoul, Jr., who pronounced, in his capacity as a member of the Massachussetts House of Representatives, a rather prolix “oration” on the occasion of the 1836 Independence Day, in the course of which he had much to say about the common law. This, in particular:

[t]he Common Law is the perfection of human reason―just as alcohol is the perfection of sugar. (38)

Wonderful, isn’t it? Too bad Rantoul did not, in fact, mean it as a compliment! Outdoing Bentham, he argued that, being “unknown” and retroactive, the common law was not law at all―it was not even dog law, but pure venom:

The subtle spirit of the Common Law is Reason double distilled, till what was wholesome and nutritive, becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of Reason bewilders, and perplexes, and plunges its victims into mazes of error. (38)

Well, all that I can say is that Rantoul was obviously missing out, on the joys both of the common law and of fine spirits.

Don’t repeat his mistake!

Nothing Like It

Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the usual practices of a community ― though as I recently pointed out, this is not always a good thing. But how does the law deal with the new, the unusual, the unprecedented? How do, and how should, judges respond when they confront situations never faced by their colleagues and predecessors? Some recent blog posts by Gerard Magliocca and Kyle Graham explore some aspects of this question.

Prof. Magliocca is interested in assertions by a court engaged in judicial review of legislation that the statute at issue is unusual, asking “whether this concern constitutes an independent theory of heightened scrutiny.” He suggests a number of reasons for why this might be the case:

One possibility … is that this a rhetorical move.  Characterizing a law as strange implies that finding it invalid will not endanger other laws.  Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.

Another thought is that an unusual law raises questions about its motivation.  Why did the legislature pass this curiosity?  Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.

A third possibility …  is [that] this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.”  In effect, tradition should be given considerable weight in interpretation.

For his part, prof. Graham is interested in “the dog that didn’t bark” arguments to the effect that the absence of judicial decisions holding that x is the law means that x is not the law. He contends that such arguments aren’t persuasive, because “a precedent desert” might be due to a number of factors that have little to do with the correctness of the proposition that x is or is not the law. It might not be worth litigating the point because the remedies available are unattractive, or the cases might be settled before being resolved by courts. Indeed, however we might expect or wish otherwise,

lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

For what little it’s worth, I inclined to agree with prof. Graham. I think, for example, that A.V. Dicey was badly mistaken when he argued that the absence of precedents in which courts enforce constitutional conventions meant that conventions were incapable of judicial enforcement and indeed not part of law at all. (I develop this point in my paper “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford University Commonwealth Law Journal 29 (2011).) At the same time, I sympathize with courts looking at “unusual” statutes with some suspicion. When, in a recent post, I have described a Saskatchewan statutory provision allowing a newly-elected government to fire members of most provincial administrative agencies as “very unusual,” it was not only a statement of fact, but, at the same time, a way of indicating wariness and disapproval.

These are only hunches though, and of course the question arises whether they are inconsistent. In other words, should we draw the same conclusions from what prof. Graham calls a “precedent desert” in statutory law as in judicial decisions? And if so, what should these conclusions be? Does the absence of judicial precedent mean something more than prof. Graham thinks, or are courts wrong to make something of the unusualness of the legislation they are reviewing? Or is the best attitude a sort of compromise that consists in a Burkean conservative attitude of treating all novelties, whether legislation or legal claims, as presumptively suspicious but not conclusively impermissible?

I haven’t thought enough, or intelligently enough, about these questions to say something very profound. The most I can venture is that beyond its sometimes useful, sometimes annoying preference for sticking to the familiar, law is concerned with its coherence (or, to use the loftier Dworkinian idea, “integrity”). It is not closed to new claims, rules, or arguments, but if it accepts them, it must integrate them, assimilate them, make them part of the system. It must, as prof. Magliocca puts it, “tam[e] exotic beasts” and domesticate them. It is probably not unnatural that courts sometimes recoil at that task ― but it does not necessarily follow that are justified in doing so.

Almost Arbitrary

On the Volokh Conspiracy blog, Eugene Volokh has a post about an interesting case just decided by a federal district court in California. The case, Hebrew University of Jerusalem v. General Motors LLC, concerns GM’s right to use the image of Albert Einstein if an advertisement for one of its gas-guzzlers.

Einstein died in 1955 in Princeton, NJ. Eventually, the Hebrew University inherited Einstein’s property under his will. In the meantime, New Jersey’s courts recognized a common law “right of publicity,”  a sort of intellectual property right in one’s image and “persona,” and in particular in the commercial exploitation of such things. In 2009, GM ran an ad using Einstein’s picture to try to persuade us that buying one of its SUVs is an oh-so-brilliant idea. The Hebrew University sued, claiming that it had inherited Einstein’s right of publicity, and that GM has appropriated the old man’s image without its consent.

(Full disclosure: there is a print of Einstein, from an engraving by a distant relative, hanging on the wall in front of me as I’m typing this.)

The decision just released deals with a motion by Hebrew University for a ruling that the right of publicity which it inherited lasted long enough for its suit to be effective. It proposed that the right ought to last at least 70 years, in line with the federal term of copyright and the duration of California’s statutory right of publicity. The court rejected the motion and held that the right of publicity lasted only 50 years as a matter of New Jersey law, which is applicable to the case because Einstein died in New Jersey, conveniently just short of what the Hebrew University needed for its lawsuit to go ahead.

This case is a nice illustration of what Lon Fuller described as the ineradicable “antinomy of reason and fiat” in the common law (“Reason and Fiat in Case Law”, 59 Harv. L. Rev. 376 (1946)). The court’s decision is at once at a development of the principles and logic of the law surrounding the “right of publicity”―reason―and an arbitrary decision to set the right’s term at 50 years, rather than at some other number that would have suited these principles and logic just as well―fiat.

Among the reasons that bear on the court’s decision are the origin of the “right of publicity” in privacy rights and its inherent connection with the personhood and dignity of its original holder, which weakens over time after that person’s death, suggesting that the right should not be of unlimited duration; the resemblance, which is yet not an identity, of the “right of publicity” with copyright, which makes the copyright term a useful guideline, but not a firm mark, for the duration of the right of publicity; the choices of other states, which split about half and half between allowing a right of publicity longer than 50 years after the person’s death (indefinite in one case, up to 100 years in  a couple of others) and 50 years or shorter (sometimes as short as 20 years); and freedom of expression and the need for a rich public domain. Considering these reasons together and individually, the court concludes that 50 years is a reasonable middle ground, a compromise between allowing a person to exploit his image and fame and transmitting the benefits of his life’s work to his heirs, and letting the public use images that become part and parcel of our culture.

Perhaps so. Yet surely, 49 years or 51 would have been just as reasonable as 50; the number, after all, has relatively little, except its neatness, to recommend itself. (It was the old term of copyright protection in the US, to be sure, but it is no longer, and in any case the court pointed out that the copyright term, which it qualified as “extremely lengthy” (p. 11) is not determinative.) More to the point, a term of 55 or even 60 years would have struck much the same balance between the reasons at stake―but it would have made all the difference to the parties, since it would have allowed Hebrew University’s lawsuit to proceed.

As the court noted, citing a scholarly work, “the determination of the right’s duration [is] ‘by nature almost arbitrary'”  (p. 4). It noted, too, that “[a]n ‘almost arbitrary’ ruling is unacceptable, however” (4). It did its best to give reasons for its conclusion, so as to make it non-arbitrary. But the reasons, I think, cannot close the deal. They can, at best, point to a ballpark of reasonableness, a murky area in which any outcome will be defensible―but none incontestable. As Fuller warned,

[w]hen we deal with law, not in terms of definitions and authoritative sources, but in terms of problems and functions, we inevitably see that it is compounded of reason and fiat, of order discovered and order imposed, and that to attempt to eliminate either of these aspects of the law is to denature and falsify it. (382)

The existence of cases such as this is, nonetheless, something of an embarrassment to courts, who tend to cling to pure reason as the source of their legitimacy. It is also an embarrassment to those whom I described here as “right-answer romantics” who think that common law adjudication can always yield a definite right answer to any legal question. But for the rest of us, it need only be a fact about the law that we ought to be clear-eyed about.

Right Answer Romantics

I was re-reading F.A. Hayek’s discussion of the common law in Chapters 4 and 5 of Rules and Order, the first volume of his Law, Legislation and Liberty, and was struck by something I had missed when I first read it four years ago while working on a thesis on common-law constitutionalism. When deciding a case in which the applicable rule of law is not readily supplied by prior judicial decisions  (or by a statute), says Hayek,

The judge may err, he may not succeed in discovering what is required by the rationale of the existing order, or he may be misled by his preference for a particular outcome of the case in hand; but all this does not alter the fact that he has a problem to solve for which in most instances there will be only one right solution and that this is a task in which his will or his emotional response has no place. (119-20)

This is strongly reminiscent, of course, of the (more familiar to most legal philosophers) “right answer thesis” defended by Ronald Dworkin, according to which there is a right answer to every legal question, no matter how difficult, which a proper interpretation of the law should yield.

There are minor differences in the qualifications Hayek and Dworkin make for their right-answer claims: the former concedes, it seems, that there are at least some cases in which it does not hold―though he does not say what these are. The latter is willing to allow that the right answer cannot “be proved right to the satisfaction of everyone” (Law’s Empire, ix, emphasis in the original). Still, the two clearly believe in the essential truth of the one right answer claim.

They also come to it in roughly similar ways, arguing that, while the sources of law recognized by legal positivists (statutes and judicial decisions) do not provide all the answers to all legal questions, more general principles do. They differ somewhat on where these general principles come from and how they are to be found. For Dworkin, one gets at them by interpreting and making sense of prior political decisions of the community, notably the constitution, statutes, and judicial decisions. For Hayek, they are rules of conduct observed unconsciously by members of the community, unbeknownst perhaps to its rulers. But the first place to look for them is in prior judicial decisions (and perhaps also in legislation, though Hayek does not say so, because he recognizes that some legislation corrects aberrant judicial decisions). So these positions are not actually all that different.

In addition to the right answer thesis, Hayek and Dworkin draw another common conclusion from their view that the law’s “seamless web” (to use Dworkin’s expression) or “going order” (to use Hayek’s) is complete and ready to supply a sufficiently skilled and conscientious judge with right answers to all his questions. Both claim that judges do not “make law” in the way legal positivists think they do. Dworkin says that while

judges unquestionably ‘make new law’ every time they decide an important case. They announce a rule or principle or qualification or elaboration … that has never been officially declared before,

this can really be said to be law-making “in a trivial sense.” (6) They do not really make new law―they actually say what the law, properly understood, already was. Hayek makes a greater allowance for the judge’s creative role, but he is adamant that

even when in the performance of [his] function [the judge] creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. (119)

And there, I suspect, is the key to this at first sight unlikely unison between the classical liberal Hayek and the New Dealer Dworkin. They are both trying very hard to legitimize the judges’ work, because they mistrust legislatures. They do so for opposite reasons: Hayek thinks they are over-eager to ride roughshod over the economic liberty and property rights of people; Dworkin, that they are likely not to respect individual rights, the chief of which is equality (not liberty). Their legal utopias are very different: Hayek’s ideal law a morally neutral framework in which each person is free to pursue his own ends, and in which the state’s values have no place at all; Dworkin’s is a legal system thoroughly permeated by a single, coherent set of values. But the upshot is the same. Legislatures are likely to impede the attainment of utopia. Judges, on the contrary, hold the values that can bring it about. (Of course Dworkin and Hayek can’t be both right about this, and perhaps neither of them is, but each thinks that he is.) So both idealized the judges’ law, and join in an almost indistinguishable common law romanticism.