The other day a colleague texts me to announce they’ve beaten their adversary’s motion to dismiss in a state court computer law civil case. I congratulate them, it’s an important case, and ask them to shoot me the written opinion. They reply that there’s no written opinion, just a one-page decision denying the defendant’s motion to dismiss.
This type of decision - unaccompanied by a written rationale, or only supported by a cursory one - is far more common than a written judicial opinion with findings of fact and conclusions of law. Summary dispositions outnumber the written decisions people like to call “case law.” Yet people obsess over written case law more than these unexplained decisions of the courts. It’s easier and more concrete.
There’s a tendency to downplay the effect of summary dispositions. The courts do this when they claim their summary dispositions aren’t precedential. As if everything a court does isn’t precedential. Smart lawyers look to what a court does, not necessarily what it says it’s doing. And when you do that with courts you often find that their unpublished, summary dispositions contradict their published decisions. I first noticed this practicing with the Computer Fraud and Abuse Act (“CFAA”), then took an acid bath in it with the Communications Decency Act § 230. This divergence of text and practice is a common feature of the common law.
By the common law I mean the whole flux of unwritten, unspoken, spoken, and written practices of our legal system. This includes judicial precedent but isn’t limited to it. The bigger part of the common law is unwritten and unspoken. Mistaking the law for the precedential written word is an understandable mistake. What’s harder to see (and elucidate) is how much of the law isn’t verbal. Because this fact hides behind a veneer of words.
The common law is more than just the tidy rule-based application of published precedent to alleged facts framed in legal terms. Legal textuality masks fields of conflicting psychological, sociological, and evolutionary prelinguistic intentional states driving legal decision-making with more force than rationality. This insight is nothing new. If you read Bracton you’ll see he complains about judicial bias and incompetency in the 13th century. In the Twentieth century, legal realists got themselves into a tizzy about the law’s subjective biases. Logic and rationality do make a difference in the law; the legal realists underestimate the power of rationality in the law. Likewise, the rationalists overestimate logic’s rule of law.
Bias is always a factor because every fact finder and determiner of law decides from a subjective point of view - even when it comes to their choice of logic. Ignore one logical proposition in favor of another and necessarily something else follows. Legal decision making is unlike scientific. Scientists uncover necessary brute facts about nature; science can’t ignore gravity or the velocity of light. Scientific descriptions are necessary descriptions; legal descriptions are contingent - witnesses and the evidence can tell multiple stories about a state of affairs. A judge and jury can ignore facts, based on their interpretation of them and their narrative context, in ways science can’t. Story matters at trial; the Theory of Relativity tells none.
The radical subjectivity of the law’s background cannot be escaped. Ultimately law is arbitrary no matter how hard one turns to nature, common sense, or absolutism. This is not to argue that there aren’t necessary truths but rather that most necessary legal truths aren’t. Because they’re based on contingent propositions logically equivalent to statements like “slaves are chattel.” Pimping contingent propositions as absolutes is one of legal philosophy’s - and the tyrant’s - favorite sleights of hand. Natural law theories are guilty of this.
Nature is nasty and constantly consumes and fucks itself. You can look at nature’s violence and just as easily make an argument that killing is a natural right as you can that it is a violation of the natural order. You can use natural law to justify rape and genocide, and that’s bad. Rape and murder pervade the animal kingdom. Those aren’t results ethical, moral people endorse, but you have to turn to principles outside of natural law to refute them. Like forms of utilitarianism, duty based moral systems, or ethical hedonism (“do unto others as you would have them make you feel”).
What is common sense to one is perverted sense to another. The values of one tribe clash with the values of another tribe. Think abortion, think education, think criminal law. The common sense resolution of those conflicts in our society comes in part through the common law.
The genius of the common law, and most systems of law, is that they’ve evolved to deal with the underlying radical subjectivity and indeterminacy of human existence in a two fold way: (1) almost all legal systems procedurally bring finality to disputes for the benefit of society - including the tension between individual and societal rights; (2) almost all legal systems provide positive behavioural and transactional rules for society’s prosperity. That’s not to argue that the final resolutions or behavioural and transactional rules are just, or fair. That’s a different debate. The history of the common law is full of examples of abhorrent rules of thumb we now reject as unjust and unworthy of the name “law.” But that the system rejects them as society evolves is to its credit. The plasticity of the common law is one of its best features.
The common law is aware that it gets things wrong; that’s why it’s intentionally plastic and ever evolving. And why historically there’s been multiple levels of appeal allowing for review from different perspectives. Every developed legal system has a system of appeals. Or developed mechanisms for mitigating the system’s seeming harshness. Equity develops in reaction to the injustices created by the rigidity of the common law writ system. Even trial by ordeal had plenty wiggle room for mitigating its harshness. For instance, in certain forms of trial by fire there was no requirement that anyone check the temperature of the allegedly hot iron a defendant, in order to prove their innocence, is supposed to grasp without getting blistered. And there were multiple ways to game trial by water.
The fact that parties continuosly seek to manipulate the law to their litigation or transactional ends means the law is never static. It is always in flux. A trivial fact people oft ignore when they invoke the “Law.” The common law engages that manipulative, conflicting flux with a plastic community intentionality that imposes order and finality towards the ends of society. Texuality is part of that because it’s a primary form of notice to the community of law’s purported ends.
Textuality provides stability. That stability is important for society - contract law’s sophisticated transactional principles are an economic boon. But stability should not be confused with inflexibility. Contract law is constantly evolving - take a look at the rise of smart contracts. Textuality’s importance is not to be underestimated. But there is far more going on in the courtroom or a deal than just the text of the law, whether as a statute or a decision. One ignores the traditions, both written and unwritten, behind the substance and process of our common law at the risk of getting sandbagged by them in court, business and society.
Textuality is is not the dominant feature of our legal system. Yet people talk as if it is, and as if the common law is dead or on life support. I often hear the phrase “There is no federal common law.” But there is a federal common law - for instance, there are no written rules for motions in limine (pretrial motions near the start of trial). It’s a practice developed in the 19th century by the federal courts for trial efficiency purposes. More importantly, the entire structure of our judiciary and the Constitution is a common law one. The common law is baked in; our legal system is incoherent without reference to the common law because it's built entirely on common law process and substance.
The textuality of our law is only comprehensible against this common law background. A plastic, ever evolving common law. That’s a straightforward historical point. Yet you’re not really taught anything in depth about the common law in law school. You come across it everywhere - particularly in Latin-laden tort (personal injury) law and its liability frameworks of intentionality and negligence. Tort law is quintessentially common law, both in its history and continuous evolution with our changing society. But it’s largely taught as if it’s just a set of written rules whose history is unimportant and the rules of which are primarily static. Even though the best practicing tort lawyers continually invent new torts to deal with new societal harms. Precedential textuality ignores this primary aspect of the ever-evolving common law. It just doesn’t consist of old precedent, but also of new precedent. The common law provides for the precedent setting destruction of its old precedent for the benefit of the commons. This feature is subject to ideological capture, as one can see in the current battle over abortion law.
The common law is messier than it is precise. Precedent is often conflicting, and courts can send contradictory signals as to what is precedential. What is legal in one jurisdiction under the CFAA is a felony in another. Often federal courts of appeal do one thing in their allegedly precedential published opinions while doing the opposite in the majority of their allegedly non-precedential “unpublished” decisions. There are laws courts won’t enforce just like there are laws the police won’t enforce. Because society has long since outgrown them, or because they are unjust. Unwritten practice in federal trial and appellate courts often differs from their current written rules. The common law encompasses not only precedent, but the general customs, particular customs, and the customary practice not only of the courts and lawyers but of the People. The public just won’t accept the enforcement of certain laws. Practicing in court or cutting a deal brings with it a host of unwritten customs and practices. Ours is a common law system, that is our fundamental paradigm, and it is inescapable.