Common law

I just read an article by Frederick Schauer, The Failure of the Common Law, 36 Ariz. St. L.J. 765 (2004), in which he describes what he calls the increasing "precisification" of law, both statory and especially common law. In contrast to sweeping pronouncements of the sort found in the Sherman Act, modern statutes (think federal sentencing rules) are highly detailed, leaving little room for judicial discretion in application. Even when judges are vested with wide discretion, Schauer argues, they increasingly adopt rules to limit their own discretion.

Much as I dread the exercise of discretion by the right-wing ideologues currently being crammed onto the federal courts, or by some of the folks I've seen appointed to state benches, as a general principle I am troubled by an emphasis on rule-making over individual adjudication. The making of common law at the aporia where general rules meet singular disputes is a very different process from either legislation or rulemaking by experts and, in my opinion, should remain so. Schauer reminds us that the notion of judges "making" law with their decisions rather than "discovering" it is relatively novel; what we now see as discretion was once the product of scholarly research into universal rules of reason and justice. The death of that particular god left common law adjudication without any identifiable constraint beyond the judge's own subjective understanding, sympathy or bias.

Shortly before reading Schauer's article I read Pierre Schlag's A Brief Survey of Deconstruction, 27 Cardozo L. Rev. 741 (2005), a part of Cardozo Law School's Symposium commemorating Jacques Derrida. Schlag recounts the reception of deconstruction in the US legal academy with all its twists and turns, winding up with Derrida's Levinasian emphasis on deconstruction as justice--the infinite openness to the other. Schlag disappointingly concludes that deconstruction as openness to the other has little value for law.

I disagree with Schlag on this conclusion. I think that a deconstructive understanding of the aporia that must but can't be crossed when a case must be decided by the application of general rules to unique circumstances, the impossibility and necessity of decision, is a way to think about the process of adjudication and the value of the judge's role. Particularized rule-making of the sort described by Schauer attempts to determine singular cases in advance--to define the future as a species of the present instead of remaining open to the future to come.