05 March 2013

Less Crazy Than It Seems

SCOTUSblog, a leading online source for breaking news regarding the United States Supreme Court, announced today that henceforth it would “eliminate the middle man” and simply start issuing its own precedential opinions.
From noncuratlex.com.

As crazy as this satirical post seems, it isn't as far from approaches to deciding cases that have been used in the real world to make real world decisions, as you might think.

In civil law systems around the world, the balance of importance between informed academic commentary and binding legal precedents in resolving close legal issues weighs much more heavily in favor of commentary than in Anglo-American common law systems.  Academics make more law than appellate judges do in those countries.  This process predated the comprehensive codification of the law in many of these countries by several centuries.  The earliest comprehensive modern civil code was the Code Napoleon, adopted during the French Revolution.  The process of "reception" of Roman legal treatises (mostly just digests of opinions of independent arbitrators collected for the use of lawyers and judges) as authoritative in resolving current legal disputes began about five hundred years ago, a millenium after the Roman Empire had lost all formal legal authority.

In the early days of the American Republic, influential commentaries on the British common law was used to state the prevailling common law rules at a time when many new states had few precedents of their own of any kind (let alone relevant ones), when library resources for lawyers and judges were scarce in the pre-copying machine, pre-word processing, pre-search engine era, and when the first law school graduates would not exist until about 1870.  Even if there were precedents were on point, lawyers and judges often weren't aware of them.

If all of this seems very strange, recall that U.S. courts routinely refer to a source of law prepared by academic and bar association commentators that is not reviewed or approved by any governmental body before going to print as one of the most powerful sources to resolve open common law issues in torts, contracts, property law, agency and a host of other fields.  These sources are called the Restatements and the Restatements routinely are given preferred treatment relative to persuasive authority like precedential decisions of sister state courts that aren't binding on a state court.  They are even frequently used as a partial basis for courts with the authority to shape common law decision making to discard binding but old common law precedents that reflect overall worldviews about an area of law that have come to be seen as outdated.

Other scholarly treatises are now and have historically been given great weight, particularly in unresolved areas of the law of the kind that the U.S. Supreme Court usually handles.

A large share of all countries of the world delegate the constitutional issues that the U.S. Supreme Court routinely decides not to a purely legal highest court of appeal, but to a special "constitutional court" whose members are chosen for the public respect that they can command and often have more diverse and semi-political backgrounds than appellate judges, a character shared with many leading bloggers.

One could do worse.  Under the Federal Arbitration Act, the law very strongly favors having dispute resolution done under procedures chosen by and by people selected by the party who drafted a contract of adhesion, subject to virtually no judicial review, with virtually no appeals (even for clear mistakes of law), an institutional bias in favor of the contract drafter, and no regulatory requirement that the arbitrator have any qualifications other than to be a literate adult.  Given a choice between that and SCOTUS blog, I'd take my chances with a bunch of self-appointed trade journalists over the status quo any day.

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