Jason, Steve, Neil  & others,

 

(here is to hoping that the statue of limitations on this discussion has not passed)

 

                A few comments on your distinctions between Cardozo and Denning, and intermediate vs final courts of appeal (COA). While the distinction between final and intermediate courts of appeal (COA) is interesting, it seems that the system you envision would have to work something like this. First, lawyers would have to convince the client to bring a case that he is certain to loose on the first two levels merely hoping that he will win before the HOL.  Thus I imagine that you would want the judge at first instance to say something like, “well we should really get rid of rule X and rule for plaintiff, but such is the precedent and I will rule for defendant.” Then they can expect to get a variation of this answer at the intermediate COA: “We really feel that the law should evolve here and go for the plaintiff, but our hands are tied and we must rule for the defendant.” Then, appealing yet again to the final COA and here we expect the Justices/Lords to say, “We understand that the two lower courts ruled against plaintiff on the basis of the precedents, and this was correct from their point of view.  However, after further reflection, we think the law should change.”  

 

Conceptually, there may not be anything wrong with this system, but, from my vantage point, it seems rather different from the one that exists.  First, it would take a very willing and rich client to know from the outset that the ONLY hope for relief is to litigate all the way to the final COA and to convince them to frontally change the law. Moreover, in jurisdictions where there is no appeal of right to the COA—this could be even more complex process.

 

Moreover, presenting the choice between tweaking and overruling in such stark terms begs the divide between the judicial and the legislative function.  You are basically asking the final COA to act in a legislative capacity, by stating that although the precedents and lower court holding are against us, using our power as the final arbiters we will change the rule.

 

More fundamentally however, this undervalues the process through which private law rules change in the common law system. Rules don’t (or shouldn’t) change because one day a court wakes up saying that the previous rule was wrong. Legal change, like linguistic change, occurs over time, and is more bottom up than top down.  The typical architecture of a rule change (at least in the US) looks something like this. For some time lower courts have been carving exceptions into the scope of the rule, usually by legal and factfinding fictions and by manipulating neighboring doctrinal categories. Other courts might follow the strict rule, but under vigorous dissent.  The academics pick up on these tensions and add fuel to the fire.  Then different intermediate appellate panels/courts start reaching results that are conceptually if not factually irreconcilable. Finally, at the end of the process, the final court of appeals formally changes the law. But the final COA will build its argument by pointing out that to a large degree the law has already changed, and that it is merely “finding” the law rather than legislatively mandating a new rule.  Everyone has their favorite example of this sort of case, Henningson v. Bloomfield Motors is a perfectly serviceable example that currently comes to mind.

 

Which brings me back to my theology metaphor. This comparison can be taken in many ways, and here at Villanova I teach a course titled “The Uses of Tradition in Law and Religion” that explores them.  But I bring this up specifically in the context of doctrinal development, which, at bottom, is the issue dividing Jason and Steve and the topic of many of the recent postings.

 

Both legal and religious systems share the same problem. On the one hand, the doctrine is only relevant if it succeeds in changing along with the times. A system that is completely ossified quickly becomes irrelevant. On the other hand, the very strength of a tradition (legal, religious or otherwise) stems from its ability to offers a point fixity and permanence through which the radical contingency of human reality can be interpreted.

 

Hence it is not surprising that Jason’s statement in a few emails ago---

 

“The claim is not that CJ is being imported from the outside but that private law is CJ--that CJ is immanent in the private law in its structure and most basic concepts.”

 

---sounds more theological than what we ordinarily think of as “legal.” Immanent is a word that historically is associated with God’s relationship to the universe, or in the OED's language “the Deity regarded as permanently pervading and sustaining the universe” 

 

But beyond semantics, the debate between Jason and Steve is about the dialectical tension between tradition and change, a search for the line between authentic developments and radical aberrations.

 

This tension is ever present in virtually all systems that engage in interpretative doctrinal analysis. Thus in Judaism it is the fixity of revelation at Sinai balanced by the and the evolving tradition of the oral law; In Christianity its Christ’s revelation, as mediated by the tradition of the Church in the Magesteruim (for Catholics);  or as the Word is interpreted by the community of believers for protestants; In American law it’s the signing/ratification of the Constitution with the subsequent practices of the courts the populace, and in Commonwealth private law it seems to derive from some Hale–ian understanding of “the Common Law as embodied by Reason and Precedent,” balanced by the needs emerging needs of international commercial enterprise.   Thus virtually all the arguments recently heard on ODG and in the relevant legal literature, are replicated in each of these discourses. (More on this in my “Jesus’ Legal Theory” http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=549545).

 

For those of you for whom this has veered too much from the lawyerly discourse of the ODG, feel free to hit “delete” and you can chalk my indiscretion up to my simply being “American.” But for others, I hope to have placed our project of doctrinal justification and elaboration alongside some very worthy companions.

 

 

Chaim Saiman

Assistant Professor

Villanova Law School

610.519.3296

saiman@law.villanova.edu

view my research at http://ssrn.com/author=549545