My long-in-the-works article Finding Law has now been published online in the California Law Review. The article takes on about a century's worth of legal prejudices, nowadays associated with the Supreme Court's decision in Erie Railroad Co. v. Tompkins. Instead, it defends a view of unwritten law as something that can be found by the legal system, rather than only being made by judges.
From the abstract:
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed—as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. This Article seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, "positive" criticism is that law has to come from somewhere: judges can't discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English—with a certain kind of reliability, but with no power to revise at will. The second, "realist" criticism is that law leaves too many questions open: when judges can't find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force—as law of the circuit, law of the case, and so on—without altering the underlying law on which they're based. This Article claims only that it's plausible for a legal system to have its judges find law. It doesn't try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous passages in Erie, rest on the false premise that judge-made law is inevitable—that judges simply can't do otherwise. In fact, judges can do otherwise: they can act as the law's servants rather than its masters. The fact that they can forces us to confront the question of whether they should—and, indeed, whether the Erie doctrine itself can outlive its mistaken premises. Finding law is no fallacy or illusion; the brooding omnipresence broods on.
And from the conclusion:
This change in attitude toward the common law seems to be rooted in a giant intellectual mistake. According to [Larry] Kramer, the removal of limitations on judicial lawmaking "results not from doctrinal changes, but from changes in our beliefs about the nature of law and the lawmaking process." It's only because "[w]e have come to see that even the fundamental principles of the common law were 'made' by judges" that "the 'natural' limits of pre-modern common law disappear, and the potential for making common law becomes as broad as we are willing to let judges go." Surely the judicial process could have used some demystification; surely the history of the common law, under Lord Mansfield as well as others, is replete with examples of judges playing fast and loose with unwritten law. But the real motive force here seems to be a simple error about the nature of law: that it's a "fallacy" or "illusion" to suppose "that there is this outside thing to be found." And such errors, once made, don't restrict themselves to unwritten law: cavalier judicial attitudes toward the common law have seeped into statutory and constitutional arguments as well. Again, nothing in this Article addresses the actual norms of actual legal systems—whether in Blackstone's England, New York State, or the United States as a whole. Maybe today's legal norms really do empower judges, federal or state, to trade in their black robes for superheroes' capes, or to play "junior-varsity Congress" with unwritten law. But in light of Holmes's own reticence, it's important to remember that this is not the only possible approach; that history and legal theory do offer alternatives; that different polities can choose, through their own constitutional systems, the powers they want their judges to enjoy. To make this choice, we need to restore, at least at the level of possibility, the consensus that such a choice exists. …
More on the specifics of the argument later this week.
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