Mouring the Common Law Tradition

A few years back, a colleague from Beijing made his first journey to the United States to present a paper we wrote together for an academic conference in San Francisco. I frankly do not remember much about the paper or the conference – what I do remember is our lunch break. We took that time to walk over to San Francisco’s UC Hastings College of the Law Library. “What are all of these books?” my colleague asked me. I told him about the doctrine of stare decisis or adherence to precedent, how we publish judicial opinions, and the importance of those opinions to our common law tradition. He seemed a bit perplexed. I remembered that China has laws but no judicial precedent interpreting the laws or precedent establishing common law in the absence of statute.

It is, of course, such judicial precedent that creates expectations and obligations in our common law system. Guided by the doctrine of stare decisis, judicial authors including Learned Hand, Benjamin Cardozo, Roger Traynor, and others wrote opinions that used age-old logic to address the conflicts of their time. Their opinions did not change the law as much as they explained its application to newer problems. Writing an opinion, in some respects, is akin to a mathematician showing his work. The legal opinions essential to our common law tradition allow us to understand the answer, even if we do not agree with it. And, if the process leading to the answer is flawed, it is easier to spot the flaw and correct the result. Of course, through the doctrine of stare decisis, jurists make an art of reading the law and applying it to contemporary fact patterns. Emory Law Professor Frank Vandall’s book, A History of Civil Litigation: Political and Economic Perspectives (Oxford University Press: 2011), masterfully portrays the elegance of our common law tradition through a history of the evolution of products liability law.

To illustrate the importance of transparency, our next stop was the United States Federal Courthouse. “We have to make an appointment,” my colleague told me, strongly hinting that we risked getting arrested. I told him that our court system is open for all to watch. Keeping the courts open, I explained, is integral to maintaining confidence in the results, even where people disagreed with the outcome. We visited the Clerk’s office where the person at the counter partially allayed my colleague’s fears by saying, “Honey, you can look at any file you want.” Next, we walked into a courtroom where there was a live trial. I vividly recall that convincing my colleague to enter the courtroom was about as difficult as giving our cat a bath.

I think that, after our visits, my colleague got at least an inkling of our system. The openness of our courts and the transparency of the common law tradition are the mechanisms that safeguard – and sometimes recalibrate – our system of checks and balances. Just as the judicial branch can review the conduct of the executive branch, the legislative branch can engage in corrective or balancing legislation. Yet, the legislative branch can only perform its balancing when the work of the judicial branch is an open book. A vivid example of this balancing act is the Ledbetter case and the subsequent Lilly Ledbetter Fair Pay Act of 2009.

I was pleased that my colleague appreciated our legal system, but I have a confession: I did not have the heart to tell him that it has become an endangered species. Through opinions by the Supreme Court in American Express Co. v. Italian Colors Restaurant and AT&T Mobility LLC v. Concepcion, we are doing to the judiciary what we have done to many inherently governmental functions; we are privatizing it. Litigants who would otherwise have the right to a hearing before a publicly appointed judge are being told that their case must be heard by a private judge, an arbitrator. The hearings are not as a matter of right open to the public and there are – more often than not – no written opinions. And, even if an arbitrator does “show his work” through an opinion, reviewing courts will not upset the opinion for factual or even legal error or plain neglect for precedent.

They say arbitration is more efficient and less costly than traditional legal proceedings. Who knows whether this is true. Yet, one thing does seem clear; its imposition is not without externalities, including the impact on our common law tradition and our system of checks and balances.

In the span of a lifetime there are things that come and go and we often find ourselves saying, “Remember when?” More often than not we say that about things we really do not miss. Remember the slide rule or the Betamax? They were replaced with better products. Can we say the same about our common law tradition?