Finding Law

Judges can be expected to find the law, rather than make it.


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.

NEXT: National injunctions and equitable mootness

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  1. The fact that spontaneous order can arise (societal norms and whatnot) does not mean that when a judge “finds” a previously unrecognized law that they’re doing the same thing. The judge is using his or her authority to impose a rule on somebody else, which is quite different. Even if a judge correctly discovers a societal norm that hasn’t been formally adopted as a law yet, by turning an expectation into a command, they are doing something different than just enforcing the status quo.

    1. Absolutely correct. It’s not like there are enforceable laws just lying around on the ground, that the judge stumbles over. Even in the best case scenario he’s changing a social norm into a command backed by the power of the state.

      1. In other instances, judges need to insert special interpretations into the law so we can defend our society against the attacks of certain recalcitrant “free speech” individuals. For a good example, see the documentation of our nation’s leading criminal “satire” case at:


        There, the Second Circuit explained that parodies must be “recognized” as such to qualify for protection, and that it’s okay to use another’s name as long as it’s done in a sufficiently “puerile” manner, or as long as it’s done to convey an “idea,” just as long as there’s no intent to damage a reputation, in which case it’s a criminal act. These are all new distinctions, for which there’s nothing to “find” in any previous ruling.

        Similarly, the trial court ruled that “neither good faith nor truth is a defense” against the criminal satire charges, another special ruling that’s not “found” in any law book. The notion that judges can simply “find” laws when they’re confronted by inappropriate conduct presenting itself as “speech” protected by the so-called “First Amendment” is very difficult to accept.

  2. It might be relevant that Holmes was the first more-or-less “out” atheist on the Supreme Court. His experience of the Civil War, and then his reading of Nietzsche where he tried to piece together some sense out of his experience, seem to have disillusioned him as to God and any form of natural law. With his exasperated remark about a brooding omnipresence in the sky, and his sarcastic jibe at the Sermon on the Mount in his Schwimmer dissent, it seems he had no patience with any suggestion of a higher power controlling human actions.

    But like many revolutionaries, he had enough of the old regime in him that he didn’t carry out all the implications of his new “insights.” As this article points out, he rejected the idea of judges making sweeping legal changes. He may have paved the way for more ambitious judges, though.

  3. The English legal tradition we started with was very much used to the idea of Judges finding the law. They wouldn’t have seen some reason for Federal judges to be less equipped for it. The entire English Common Law was essentially lawyer-made law from London (as opposed to customary law determined by the community). Whether it was the intent of the drafters of the Constitution or not, it certainly wasn’t alien to them.

    1. Notice, however, the difference between the 6th and 7th amendments.

      The 6th, having to do with criminal trials, makes no reference at all to common law. The 7th, having to do with civil trials, directly references it.

      At the federal level common law, in the US, exists only for civil cases, never criminal. And under most state laws that’s the case, too, with common criminal law explicitly prohibited.

      1. Indeed – I learned that on the first day of criminal law. Is that distinction somehow controversial to anyone?

      2. There is plenty of federal criminal common law. It’s just delineated and constrained by statute.

        For instance, what’s an aggravated felony? A crime of moral turpitude? A serious or violent felony? All of those things are defined by common law rulemaking.

        How about the materiality requirement in a perjury conviction? Again, defined by common law rulemaking.

        And, of course, there’s LOTS of common law in criminal procedure. E.g., Miranda and its many progeny, and its bevy of prophylactic rules. Or Brady and it’s intricate rules.

        Just because there are statutes or constitutional provisions setting the boundaries doesn’t mean we have no common law rulemaking. The common law always fills in the gaps, and then we use those precedents to rule on future cases.

  4. What, is this serious?

    Stephen, the abstract and conclusion betrays no familiarity whatsoever with modern legal philosophy, so it’s hard to see what use there might be in spending another minute with this material. The comparison to social customs is apt, but it actually cuts against the argument you’re making; and the distinction between “decisions” and “law” you’ve briefly sketched out falls to dust under serious examination.

    Just incredible.

    1. What modern legal philosophy are you referring to?

      1. Past fifty years or so.

        1. That’s not really what I was asking.
          I’d be much obligated if you might get into a bit more depth. Anyone in particular you might point me to?

          1. The point I’m making, vis-a-vis Stephen, is that his terminology and argument doesn’t seem to show any familiarity with decades of philosophical work into the nature of law. This body of work anticipates the kinds of questions he’s asking and has developed a terminology for addressing them – and points the way towards various criticisms that one could make of his basic point, as it’s been presented here. He really seems to be re-inventing the wheel here, having approached the question from the perspective of someone with their nose in the casebooks.

            Accordingly, there’s no one specific I could point to, who would be said to have refuted the point that Stephen is making here. That’s just not a useful comparison to draw for the apparent amateurism here. But to speak in the most general of terms, I would point to the seminal work of HLA Hart and the various responses and refinements thereto, as well as the work of Dworkin, Finnis, and Fuller, as all representing the modern tradition of legal philosophy.

  5. “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.”

    Except… copy-editors absolutely have the power to revise at will what they declare to be standard English. The difference is that judges have the backing of government, and copy-editors do not. So when the copy-editors decided that two-spaces after a sentence was now going to be one space after a sentence, renegades who persisted in two-spacing didn’t face any jail time.

  6. I’ve downloaded the article and look forward to reading it, but by that time this discussion will have passed me by, so I’ll take this moment to endorse the statement that “uncertain cases force judges to make decisions, not to make law.” As a subject of the legal system, no longer a participant in it (being now fully retired from the practice), I would prefer that a judge judging MY case believe that his/her role is to “find” the law needed to decide my case, rather than to think that he/she is free to “make” the law to do so.

  7. You can see this principle in action by watching pretty much any of the TV judge shows (some more than others) where the judge is technically functioning as an arbitrator, and has considerable leeway in the application of law to the immediate dispute (This is so because they have no power to order the loser of the case to pay any damages. What they DO have is the ability to split the appearance fee between the winner and loser of the case, where even when they lose, they still get paid for appearing on the show.) As in, the TV judge often doesn’t bother to follow the law, but rather, makes up a solution based on their own inclination. It’s a shame they don’t admit that up front.

  8. Reminds me of the famous exchange in Slade’s Case:

    “That is not law.”
    “But still the books are thus.”
    “But the books are against law.”

    Admittedly, at the time, the Plea Rolls were a stronger precedent than the Books, but still. Knowing what the law is is the advantage that courts like Common Pleas had over the prerogative courts closer to the throne platform at Westminster. Originally, Magna Carta required that claims between subjects go to Common Pleas (which worked fine until everyone started trespassing in Middlesex for some reason), and as a result, a rich body of lore developed. Each story was a memory of what happened when two people were locked in a desperate fight, and the insight that resulted. Common Pleas was a bit further down the hall, originally across from the merchants’ booths. But it knew the stories of the law. In fact, you had to be a sargeant to appear there in the Elizabethan era, as opposed to the young barristers orating in the more prestigious courts.

    King’s Bench had the top judge of the nation, like the US Supreme Court (I’ve always wondered which role was meant by “Mr. Chief Justice…”), but it was never the supreme court. And after 1583, it wasn’t even the court of last resort. Each court had its remit, and made its law accordingly. It was a conversation, and its qualitative complexity and subjectivity is perhaps part of what gave it its power.

  9. Turtle Dove, post again. Cheers

    1. Thanks kindly.

  10. This is nomenclature. It’s not substantive.

    Common law rulemaking is a witches’ brew of case precedent and policy arguments (delimited by statutes and constitutional provisions, where applicable). It always was thus (at least dating back to when cases were first reported several hundred years ago), and it always will be thus. Whether the courts say they are finding or making the law, they are doing the same thing.

    Nor will saying courts “find” law impose a usable constraint. That was Holmes’ point when he said law wasn’t a brooding omnipresence in the sky. There’s no escaping policy arguments and considerations of justice and what Holmes called the “felt necessities”. The rules don’t come passed on from the oracles. You have to apply reasoned judgment.

  11. This is a complicated issue. A little while ago, Professor Volokh expressed surprise at discovering that scientists often construct definitions, making choices based on preferences, rather than being led to them in some sort of purely objective, automatic fashion. Lawyers are no different.

    Just as those who are aware of their potential biases often make more fair and neutral decisions than those who believe they have none, I think that those who are aware of when they are personally engaging in construction, in making selections that aren’t inherent in the sources, will in the end better protect others’ interests than those who believe their choices and preferences represent the objective nature of reality.

    The issue involves boundaries and respect for others . Constructionists are more likely to be aware others can have different opinions, that theirs is just an opinion among others, and hence are better prepared to to show respect for what others might want. Those who see their opinions as inherent in the nature of the universe, as truth itself, can only see others’ different opinions as wrong.

    Justice Potter Stuart famously said of obscenity, “I know it when I see it.” This famous aphorism incapsulates the problems that arise when one treats ones personal values as being objective and the only ones that matter. A monarchical legal system whose judges represent the king can permit such an approach. There is only one person who is being represented and whose values matter. But a constitutional democratic republic cannot.

    In general, the worst offenders in terms of people nakedly using power to impose their personal values on others are those who regard their values as objectively real and hence the only values there are.

    A republic permits the elected representatives of a democratic majority, subject to constraints, to do this. But it ought to severely limit the power of unelected members of government, such as judges, when they attempt to do so.

    At the very least, awareness that one is selecting from potential alternatives, understanding when there are clear sources and when there aren’t helps prevent running roughshod over other people.

    1. I think in general obscenity represents a good case study of the issues, because in many cases the Justices made rapid changes in the law and invented standards based on (as I see it) their personal values while claiming, and no doubt sincerely believing, that they were finding the true external objective standard.

      It seems to me judges had three legitimate choices. They could say the First Amendment covers obscenity and strike such laws down. They could say it doesn’t and leave in place the very broad conceptions of obscenity that traditionally existed. Or they could say that such laws are constitutional, and it’s not up to us to determine what the standards should be; as in all other areas of common law, if a legislature doesn’t like the standard the courts have been applying, it can pass a statute setting a different one.

      I don’t think it was legitimate for the court to have found obscenity laws constitutional, but constitutionalize what were basically it’s own opinions on the subject.

      And when called on to determine what is obscene under a common-law approach, I think it would have been best to acknowledge that doing so inevitably involves elements of creating a standard, one that reflects the Justices’ own perspectives and that reasonable people can disagree about, not “finding” the objective standard that is somehow “out there” as a Platonic form.

      Believing ones standard to be real results in too much attachment to it, too much investment in it, to be healthy for a judge in a democratic, diverse society. When one projects oneself out onto the universe, which is what happens when one claims ones personal preferences are objectively real, one puts some of oneself out onto the universe and invests oneself into it. When others take it away, some of ones self goes with it. It hurts.

      A judge has to be able to see other points of view in a neutral way. Reifying ones own views prevents this.

      A legislature represents a society, and its views are entitled to be regarded as representing the society’s views, in a way a judge simply can’t, and shouldn’t pretend to. There are cases when the sources are clear. But there are plenty of cases where they aren’t.

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