2000 SYNTHETIC COMMON LAW 15 good with no assigned ownership rights. Accordingly, if the government establishes courts but does not charge a user fee to cover costs, it encourages overuse of judicial resources, and therefore inefficiencies. The only way to prevent such inefficiencies is for the government to charge a high enough user fee to cover all of its costs But in a society where disputes are costly to resolve, such a fee would be very high and necessarily would disadvantage a large segment of society, who would not approve it. Therefore, any possible common law system is inefficient Consider the following thought experiment: residents of a newly established state have no system of dispute resolution. These residents decide to establish a judicial park" staffed with judges at the enter of the city. Any party with a dispute may enter the judicial ark, where a judge will resolve the dispute and issue a well-reasoned written opinion What problems does this state face? If entrance to the judicial park is free, any party with a dispute will enter the park to utilize judicial resources. Judicial resources will be overused and a tragedy of the commons will result. All parties will demand well-reasoned opinions, which are very expensive to provide. The externality benefits to such opinions are unlikely to outweigh these costs, because non-parties and judges cannot exercise discretion about which cases merit thorough review. The result will be a large number of potentially useless judicial opinions The state may find itself unable to generate sufficient revenue. through taxes or otherwise, to support the judicial park. If the state is able to support the park it will do so with resources that might be more highly valued in another use. Judicial resources will not be optimally used and judges will not be able to produce an efficient body of common law The state could prevent this overuse by charging fees to enter the park. To the extent the fees are less than the total costs of dispute resolution, judicial resources still will be overused, albeit less so (i.e,a partial tragedy of the commons ). If the fees charged are high perhaps even high enough to cover the total costs of dispute resolution, judicial resources will be conserved, but the system will be regressive, favoring wealthy individuals and institutions. Residents of he state may find such a system politically unacceptable As the costs of resolving disputes in the state increase, there are only a handful of possible results. One is that the efficiency of the ommon law system decreases because judicial resources are more overused. Another is that the system becomes more regressive as the state passes along the higher cost of using judicial resources by a public good is a commodity or service which does not exhibit either that good are not depleted)or"excludability"(ie, it is difficult or impossible to exclude consumers from the benefits of a public good ). See WILLIAMJ. Baumol& ALAN S BLINDER, ECONOMICS: PRINCIPLES AND POLICY 543(1985) See TULLoCk, supra note 23, at 16(describing the inefficiencies of common law as a"tragedy of the commons") The costs of dispute resolution could increase for several reasons: the complexity of transactions increases, the number and/or severity of uncertain events (e.g accidents or natural disasters)increases, or residents of the state demand fairer process. In the U.s., all of these costs have increased in recent years
2000] SYNTHETIC COMMON LAW 15 good70 with no assigned ownership rights. Accordingly, if the government establishes courts but does not charge a user fee to cover costs, it encourages overuse of judicial resources, and therefore inefficiencies. The only way to prevent such inefficiencies is for the government to charge a high enough user fee to cover all of its costs. But in a society where disputes are costly to resolve, such a fee would be very high and necessarily would disadvantage a large segment of society, who would not approve it. Therefore, any possible common law system is inefficient. Consider the following thought experiment: residents of a newly established state have no system of dispute resolution. These residents decide to establish a “judicial park” staffed with judges at the center of the city. Any party with a dispute may enter the judicial park, where a judge will resolve the dispute and issue a well-reasoned written opinion. What problems does this state face? If entrance to the judicial park is free, any party with a dispute will enter the park to utilize judicial resources. Judicial resources will be overused and a tragedy of the commons will result.71 All parties will demand well-reasoned opinions, which are very expensive to provide. The externality benefits to such opinions are unlikely to outweigh these costs, because non-parties and judges cannot exercise discretion about which cases merit thorough review. The result will be a large number of potentially useless judicial opinions. The state may find itself unable to generate sufficient revenue, through taxes or otherwise, to support the judicial park. If the state is able to support the park, it will do so with resources that might be more highly valued in another use. Judicial resources will not be optimally used and judges will not be able to produce an efficient body of common law. The state could prevent this overuse by charging fees to enter the park. To the extent the fees are less than the total costs of dispute resolution, judicial resources still will be overused, albeit less so (i.e., a partial tragedy of the commons). If the fees charged are high, perhaps even high enough to cover the total costs of dispute resolution, judicial resources will be conserved, but the system will be regressive, favoring wealthy individuals and institutions. Residents of the state may find such a system politically unacceptable. As the costs of resolving disputes in the state increase,72 there are only a handful of possible results. One is that the efficiency of the common law system decreases because judicial resources are more overused. Another is that the system becomes more regressive as the state passes along the higher cost of using judicial resources by 70 A public good is a commodity or service which does not exhibit either “depletability” (i.e., if an additional user consumes a public good, the benefits of that good are not depleted) or “excludability” (i.e., it is difficult or impossible to exclude consumers from the benefits of a public good). See WILLIAM J. BAUMOL & ALAN S. BLINDER, ECONOMICS: PRINCIPLES AND POLICY 543 (1985). 71 See TULLOCK, supra note 23, at 16 (describing the inefficiencies of common law as a “tragedy of the commons”). 72 The costs of dispute resolution could increase for several reasons: the complexity of transactions increases, the number and/or severity of uncertain events (e.g., accidents or natural disasters) increases, or residents of the state demand fairer process. In the U.S., all of these costs have increased in recent years
16 10/9/00 DRAFT-DO NOT CITE WITHOUT PERMISSION VOL # charging higher fees. Still another is that the state decides to keep fees constant, but to ration judicial resources, either by delay ing the resolution of disputes, by dismissing a portion of suits based on specified standards, by punishing lawyers for filing frivolous suits, or o decide which treatment in a written opinion. Public decisions about rationing are difficult, and high transaction costs may prevent private parties (including non-parties to disputes who seek externality benefits associated with published judicial opinions) from acting collectively to persuade legislators and judges to ration efficiently This thought experiment casts doubt on the argument that the evolution of the common law has been efficient. In thirteenth century England, when the costs of resolving disputes were relatively low, it may have been possible to minimize the common law system efficiencies without charging high fees or rationing judicial resources. However, in modern society, it is not possible. The cost of resolving even average disputes is very high, and there are political pressures preventing state and federal governments from charging high fees for access to judicial resources. Judicial resources are rationed through an implicit pricing system; this system favors wealthy institutions and individuals, who can afford the costs of delay Empirical data also raise questions about the efficiency of common law. The inner workings of an effective system depend on rational, well-informed judges who move the common law along in the right direction. However, judges too often fall short of the ideal standard. The judiciary is politicized, with the results in many cases depending on which judge is drawn to hear a dispute. Judges are paid much less in real terms than they were fifty years ago, and they are confronting more complex cases brought by more parties and lawyers than ever before. Especially in areas of rapidly evolving technology, it is very difficult for judges to keep pace example, on average judges in the Ninth Circuit each write twenty thorough opinions per year, an amount Judges Alex Kozinski and Stephen Reinhardt have likened to"writing a law review article every fact, there is evidence that early British courts did bot law systems, courts did charge fees, see BENSON, supra note 40, at 60-62, although it is difficult to assess how those fees compared to the courts costs. A reasonable assumption is that those courts that survived without other resources(e.g,tax evenue distributed by the crown) were charging fees high at least enough to cover Delay benefits wealthy individuals and institutions involved in disputes with less wealthy individuals and institutions. See TULLOCk, supra note 23, at 17 Tullock notes that the tragedy of the commons aspects of U.S. courts could be eliminated by introducing market-clearing prices for access to courts, but that umerous interests- including lawyers- would oppose such an introduction. Idat e Emerson H. Tiller Frank B Cross, A Modest Proposal for Improving American Justice, 99 COLUM L REV. 215(1999); Patricia M. Wald, A Response Tiller and Cross, 99 COLUM. L REV. 235(1999) e RICHARd A POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 32(1985) The U.S. has 70 percent of the world's supply of lawyers. See TULLOCK, supra note 23. at 25 For example, judges have performed especially poorly in cases involving financial innovation. See infra Part V B 2
16 10/9/00 DRAFT – DO NOT CITE WITHOUT PERMISSION [VOL. #:# charging higher fees. Still another is that the state decides to keep fees constant, but to ration judicial resources, either by delaying the resolution of disputes, by dismissing a portion of suits based on specified standards, by punishing lawyers for filing frivolous suits, or by permitting judges to decide which disputes merit complete treatment in a written opinion. Public decisions about rationing are difficult, and high transaction costs may prevent private parties (including non-parties to disputes who seek externality benefits associated with published judicial opinions) from acting collectively to persuade legislators and judges to ration efficiently. This thought experiment casts doubt on the argument that the evolution of the common law has been efficient. In thirteenth century England, when the costs of resolving disputes were relatively low, it may have been possible to minimize the common law system’s inefficiencies without charging high fees or rationing judicial resources.73 However, in modern society, it is not possible. The cost of resolving even average disputes is very high, and there are political pressures preventing state and federal governments from charging high fees for access to judicial resources. Judicial resources are rationed through an implicit pricing system; this system favors wealthy institutions and individuals, who can afford the costs of delay.74 Empirical data also raise questions about the efficiency of common law. The inner workings of an effective system depend on rational, well-informed judges who move the common law along in the right direction. However, judges too often fall short of the ideal standard. The judiciary is politicized, with the results in many cases depending on which judge is drawn to hear a dispute.75 Judges are paid much less in real terms than they were fifty years ago,76 and they are confronting more complex cases brought by more parties and lawyers than ever before.77 Especially in areas of rapidly evolving technology, it is very difficult for judges to keep pace.78 For example, on average judges in the Ninth Circuit each write twenty thorough opinions per year, an amount Judges Alex Kozinski and Stephen Reinhardt have likened to “writing a law review article every 73 In fact, there is evidence that early British courts did both. In early common law systems, courts did charge fees, see BENSON, supra note 40, at 60-62, although it is difficult to assess how those fees compared to the courts’ costs. A reasonable assumption is that those courts that survived without other resources (e.g., tax revenue distributed by the crown) were charging fees high at least enough to cover their costs. 74 Delay benefits wealthy individuals and institutions involved in disputes with less wealthy individuals and institutions. See TULLOCK, supra note 23, at 17. Tullock notes that the tragedy of the commons aspects of U.S. courts could be eliminated by introducing market-clearing prices for access to courts, but that numerous interests – including lawyers – would oppose such an introduction. Id. at 17-18. 75 See Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99 COLUM. L. REV. 215 (1999); Patricia M. Wald, A Response to Tiller and Cross, 99 COLUM. L. REV. 235 (1999). 76 See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 32 (1985). 77 The U.S. has 70 percent of the world’s supply of lawyers. See TULLOCK, supra note 23, at 25. 78 For example, judges have performed especially poorly in cases involving financial innovation. See infra Part V.B.2
2000 SYNTHETIC COMMON LAW two and a half weeks. Moreover, the very presence of a common law system especially a low fee system coupled with liberal procedural rules- creates incentives for parties to be litigious, thereby increasing the costs of dispute resolution, in a kind of litigation death spiral. This picture of the common law process is far different from the incremental growth and beauty imagined in Learned Hand's coral reef 2. The Shrinking Supply of Legal rules Even if the common law is inefficient. it might nevertheless be of value if it adequately performed its second function: adding to and enriching the supply of legal rules in a way that reflects the values of society. There are two reasons to suspect that the U.S. common law system does not perform this function very well. First, the U. S common law system arguably is incapable of generating legal rules at all, at least not the kind of credible articulated legal rules parties need for use in daily life. Second, even if the common law system could generate appropriate legal rules in particular cases, reported judicial decisions in those cases are disappearing from public view, with the most important decisions disappearing first and most frequently. This disappearance of precedent is the result predicted by the judicial park thought experiment described in Part Il. B. 1 First, consider the argument that the common law system is ncapable of generating legal rules at all. Jeremy Bentham expressed the opinion that the common law was" a fiction from beginning to end, referring to the term variously as "mock law,""sham law and“ quasi law See Alex Kozinski Stephen Reinhardt, Please Dont Cite This!: Why We Don't Allow Citations to Unpublished DispositionS, CAL LAWYER, June 2000, at 43 I am grateful to Ed Ursin for pointing out this article, which is not available through electronic databases. During 1999, the Ninth Circuit decided 4, 500 cases on the merits, 700 by opinion and 3, 800 by memorandum disposition, known memdispo, for an average of 20 ions and 130 memdispos per judge, plus another 300 or so decisions for which the judge sits on a panel and comments on a decision, but does not author it. See id at 44. Judges write thorough opinions in only 15 percent of cases overall (including cases not decided on the merits). See Memdispos cannot be cited as precedent; if they could, judges would need to spend much cl ttention to drafting them. Id("Most [memdispos] clerks with relatively few edits from the judges. An example is the class action, which although of great potential value and mportance obviously leads to a greater quantity and cost of litigation At the same time, each state s common law system competes for business, a competition that thus could be characterized as a race-to-the-bottom. This competition is especially heated among procedural rules, including choice of lay and venue. For example, consider the popularity of certain states courts among laintiffs lawyers. Such competition is in sharp contrast with the early competition IV JEREMY BENTHAM COLLECTED WORKS 483(1838-43). Bentham wrote of the hrase common law: " In these two words you have a name pretended to be the name f a really existent object : -look for any such existing object- look for it till ow n day, no such object will you find. "ld. See also JEREMY BENTHAM, A CoMMENT ECOMMENTARIES 125(1928)("As a system of general rules, the common law is a ely imaginary. " ld at 460. For an analysis of Bentham's argument whether the common law is a "fic t and th see Simpson, supra 65.at16-18 Brian Simpson has described this argument with a simple question, " How can it be said that the common law exists as a system of general rules, when it is
2000] SYNTHETIC COMMON LAW 17 two and a half weeks.”79 Moreover, the very presence of a common law system – especially a low fee system coupled with liberal procedural rules80 – creates incentives for parties to be litigious, thereby increasing the costs of dispute resolution, in a kind of litigation death spiral.81 This picture of the common law process is far different from the incremental growth and beauty imagined in Learned Hand’s coral reef. 2. The Shrinking Supply of Legal Rules Even if the common law is inefficient, it might nevertheless be of value if it adequately performed its second function: adding to and enriching the supply of legal rules in a way that reflects the values of society. There are two reasons to suspect that the U.S. common law system does not perform this function very well. First, the U.S. common law system arguably is incapable of generating legal rules at all, at least not the kind of credible, articulated legal rules parties need for use in daily life. Second, even if the common law system could generate appropriate legal rules in particular cases, reported judicial decisions in those cases are disappearing from public view, with the most important decisions disappearing first and most frequently. This disappearance of precedent is the result predicted by the judicial park thought experiment described in Part II.B.1. First, consider the argument that the common law system is incapable of generating legal rules at all. Jeremy Bentham expressed the opinion that the common law was “a fiction from beginning to end,”82 referring to the term variously as “mock law,” “sham law,” and “quasi law.”83 Many legal positivists adhere to this view.84 79 See Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This!: Why We Don’t Allow Citations to Unpublished Dispositions, CAL. LAWYER, June 2000, at 43. I am grateful to Ed Ursin for pointing out this article, which is not available through electronic databases. During 1999, the Ninth Circuit decided 4,500 cases on the merits, 700 by opinion and 3,800 by memorandum disposition, known as “memdispo,” for an average of 20 opinions and 130 memdispos per judge, plus another 300 or so decisions for which the judge sits on a panel and comments on a decision, but does not author it. See id. at 44. Judges write thorough opinions in only 15 percent of cases overall (including cases not decided on the merits). See id. Memdispos cannot be cited as precedent; if they could, judges would need to spend much closer attention to drafting them. Id. (“Most [memdispos] are drafted by law clerks with relatively few edits from the judges.”). 80 An example is the class action, which although of great potential value and importance obviously leads to a greater quantity and cost of litigation. 81 At the same time, each state’s common law system competes for business, a competition that thus could be characterized as a race-to-the-bottom. This competition is especially heated among procedural rules, including choice of law and venue. For example, consider the popularity of certain states’ courts among plaintiffs’ lawyers. Such competition is in sharp contrast with the early competition among courts during the law merchant era. See supra note 38 (describing correlation between common law principles and expectations of both parties to a dispute). 82 IV JEREMY BENTHAM, COLLECTED WORKS 483 (1838-43). Bentham wrote of the phrase common law: “In these two words you have a name pretended to be the name of a really existent object: - look for any such existing object – look for it till doomsday, no such object will you find.” Id. See also JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES 125 (1928) (“As a system of general rules, the common law is a thing merely imaginary.”). 83 Id. at 460. For an analysis of Bentham’s argument and the question of whether the common law is a “fiction,” see Simpson, supra note 65, at 16-18. 84 Brian Simpson has described this argument with a simple question, “How can it be said that the common law exists as a system of general rules, when it is
18 10/9/00 DRAFT-DO NOT CITE WITHOUT PERMISSION VOL # Legal positivism depends on two preconditions: (1) that all laws owe their status as law to the fact that they have been laid down, i.e posited,and(2)that all laws exist as sets of rules, where the rule constitutes the law. For legal positivists, the epistemological argument is the end of the story: they reject common law, which satisfies neither of the two conditions Even those who reject the strict legal positivism argument may nonetheless find there are other reasons to doubt the common law's ability to generate valuable legal rules. Instead of conceiving of the common law as a system of legal rules, one can regard it as customary law, namely, the body of practices and ideas received over time by a specific group, predominantly lawyers, who have used these practices and ideas in disputes and in advising clients. In this sense, the common law does not exist as a freestanding entity; rather, it exists only in the minds of lawyers acting based upon it Numerous legal philosophers have agreed that the value of common law propositions depends upon the degree to which they are accepted as accurate statements of received ideas or practice Common law as customary law is valuable only if it preserves a considerable measure of continuity and cohesion. Such continuity and cohesion in turn require that the system reinforce strong pressures New entrants the system must be indoctrinated, to some extent, in the value of precedent and the importance of the systems sticky"adherence to prior decisions Although these requirements may have been satisfied in the early English royal courts, it is difficult to argue that they are satisfied today. The barriers to entry in the legal profession are crumbling non-lawyers can access and understand legal opinions and jargon there are hundreds of law schools Indoctrination into legal principles works very poorly in the U.S., even when directed at first year law stu impossible to say what they are?" ld. see also id. ("As a system of legal thought common law then is inherently incomplete, vague and fluid; it is a feature of the system that uniquely authentic statements of the rules which, so positivists tell us, comprise the common law cannot be made. Hans Kelsen wrote, "Law is always positive law, and its positivity lies in the fact that it is created and annulled by acts of human beings, thus being independent and other norm systems. HANS KELSEN, GENERAL THEORY OF LAW AND 14(1961). The synthe with this notion: it envisions many versions of"law, each of which is simply made up, or created. But note how radically different the synthetic common law is from the traditional conception of common law. The status of synthetic common law as authoritative is driven, not by the fact that it has been reated, but by the fact that private parties choose to have that""govern their One obvious weakness in the first condition of the positivist view m, which cannot plausibly said to have been laid down, also is said of law: how is difficult to say tha same way statutes are, simply because custom is composed of some underlying human action. See Simpson, supra note 65, at 11. If that were the case, what notion of law would not encompass some positive aspect e id. at 1I e id. at 20 88 See id at 21(citing agreement with Hale and Blackstone) Of course. the work the other way, i.e., these changes may be the reason for the shift from common law to statutory law in the U.s
18 10/9/00 DRAFT – DO NOT CITE WITHOUT PERMISSION [VOL. #:# Legal positivism depends on two preconditions: (1) that all laws owe their status as law to the fact that they have been laid down, i.e., posited,85 and (2) that all laws exist as sets of rules, where the rule constitutes the law.86 For legal positivists, the epistemological argument is the end of the story: they reject common law, which satisfies neither of the two conditions. Even those who reject the strict legal positivism argument may nonetheless find there are other reasons to doubt the common law’s ability to generate valuable legal rules. Instead of conceiving of the common law as a system of legal rules, one can regard it as customary law, namely, the body of practices and ideas received over time by a specific group, predominantly lawyers, who have used these practices and ideas in disputes and in advising clients.87 In this sense, the common law does not exist as a freestanding entity; rather, it exists only in the minds of lawyers acting based upon it. Numerous legal philosophers have agreed that the value of common law propositions depends upon the degree to which they are accepted as accurate statements of received ideas or practice.88 Common law as customary law is valuable only if it preserves a considerable measure of continuity and cohesion. Such continuity and cohesion in turn require that the system reinforce strong pressures against innovation. New entrants to the system must be indoctrinated, to some extent, in the value of precedent and the importance of the system’s “sticky” adherence to prior decisions. Although these requirements may have been satisfied in the early English royal courts, it is difficult to argue that they are satisfied today. The barriers to entry in the legal profession are crumbling; non-lawyers can access and understand legal opinions and jargon; there are hundreds of law schools.89 Indoctrination into legal principles works very poorly in the U.S., even when directed at first year law students. impossible to say what they are?” Id.; see also id. (“As a system of legal thought the common law then is inherently incomplete, vague and fluid; it is a feature of the system that uniquely authentic statements of the rules which, so positivists tell us, comprise the common law cannot be made.”). 85 Hans Kelsen wrote, “Law is always positive law, and its positivity lies in the fact that it is created and annulled by acts of human beings, thus being independent of morality and other norm systems.” HANS KELSEN, GENERAL THEORY OF LAW AND THE STATE 114 (1961). The synthetic common law system proposed here is consistent with this notion: it envisions many versions of “law,” each of which is simply made up, or created. But note how radically different the operation of synthetic common law is from the traditional conception of common law. The status of synthetic common law as authoritative is driven, not by the fact that it has been created, but by the fact that private parties choose to have that “law” govern their lives. One obvious weakness in the first condition of the positivist view is that custom, which cannot plausibly said to have been laid down, also is said be a possible type of law; however, it is difficult to say that custom is “posited” in the same way statutes are, simply because custom is composed of some underlying human action. See Simpson, supra note 65, at 11. If that were the case, what notion of law would not encompass some positive aspect? 86 See id. at 11. 87 See id. at 20. 88 See id. at 21 (citing agreement with Hale and Blackstone). 89 Of course, the causation may work the other way, i.e., these changes may be the reason for the shift from common law to statutory law in the U.S
SYNTHETIC COMMON LAW This breakdown in the system of customary law presents a serious paradox for proponents of the common law. If lawyers agree as to its meaning, It is not necessary, for common practice alone should be a sufficient guide for resolving disputes. If lawyers do not agree as to its meaning, rules alone are unlikely to provide the necessary authority for choosing one practice over another, however those rules are created A final argument supporting a conclusion that common law cannot generate credible legal rules is that courts lack the respect and authority necessary for the generation of such rules. Courts derive authority, at least in part, from individuals perceptions that they are objective and impartial. Yet many scholars question the objectivity of judges. Because judges are arbitrary, the argument goes, decisions cannot be replicated. And if decisions cannot be replicated, the common law cannot generate credible legal rules. Gordon Tullock has contended that during the second half of the twentieth century legitimacy of the common law. gg not entirely destroyed, the suppor There is a second, perhaps more important, reason that the modern version of common law in the u.s. does not add to or enrich the supply of legal rules: decisions in those cases are disappearing from public view. More than 60 percent of federal circuit court decisions are not published. Of those opinions, a large number either disappear or are pushed out of the relevant body of common law by a variety of processes, including depublication, confidentiality arrangements, vacatur, selective publication, and publication subject to no-citation rules. All of these processes are problematic, and they erode the value of traditional common law. How can private parties Gordon Tullock has been a prominent proponent of this view. See,e.g TULLOCK, supra note 23, at 2(arguing that late twentieth century U.s. courts have failed to maintain objectivity on a consistent basis) e TULLOCK, supra note 23, at 3( finding that"the U.S. common law system has failed to preserve such replicability across major and growing areas of law) It may be that the common law would work in a less complex society, but is ill-suited to modern disputes in the twentieth-century U. s. One reason may be the expansion of tort law in the U.s. In the eighteenth century, the common law was composed largely of the law of contract, not of torts. Torts were thought to be of n and ed legal status only for relationshi contract. See TULLOCK, supra note 23, at 11. Because synthetic common law nvolves ex ante agreement by private parties, it would not substantially affect problems generated by the recent e on of tort law. although a synthetic common law regime might be applicable to certain areas of tort law, where private part See ULLOCK, supra note 23, at 2-3y distribution of accidents s might be able to specify a probabil See Hinderks Leben, supra note 46, at 158. Much of the scholarship in this area has focused on the California state courts, where the problem is especially acute of appellate decisions in Califor d the California Supreme Court depublishes 10 percent of those decisions. See Philip l Dubois, The Negative Side of Judicial Decision Making: Depublication as a Tool of Judicial Power and Administration on State Courts of a Last Resort, 33 One commentator has described this erosion in terms of the building of a ell as additive. Like a sculpture, it is shaped as much by what is removed as by what is added slav supra note 66, at 109. This erosion metaphor applies equally well to Learned Hands
2000] SYNTHETIC COMMON LAW 19 This breakdown in the system of customary law presents a serious paradox for proponents of the common law. If lawyers agree as to its meaning, it is not necessary, for common practice alone should be a sufficient guide for resolving disputes. If lawyers do not agree as to its meaning, rules alone are unlikely to provide the necessary authority for choosing one practice over another, however those rules are created. A final argument supporting a conclusion that common law cannot generate credible legal rules is that courts lack the respect and authority necessary for the generation of such rules. Courts derive authority, at least in part, from individuals’ perceptions that they are objective and impartial. Yet many scholars question the objectivity of judges.90 Because judges are arbitrary, the argument goes, decisions cannot be replicated.91 And if decisions cannot be replicated, the common law cannot generate credible legal rules. Gordon Tullock has contended that during the second half of the twentieth century92 courts have “severely eroded, if not entirely destroyed, the supportlegitimacy of the common law.”93 There is a second, perhaps more important, reason that the modern version of common law in the U.S. does not add to or enrich the supply of legal rules: decisions in those cases are disappearing from public view. More than 60 percent of federal circuit court decisions are not published.94 Of those opinions, a large number either disappear or are pushed out of the relevant body of common law by a variety of processes, including depublication, confidentiality arrangements, vacatur, selective publication, and publication subject to no-citation rules. All of these processes are problematic, and they erode95 the value of traditional common law. How can private parties 90 Gordon Tullock has been a prominent proponent of this view. See, e.g., TULLOCK, supra note 23, at 2 (arguing that late twentieth century U.S. courts have failed to maintain objectivity on a consistent basis). 91 See TULLOCK, supra note 23, at 3 (finding that “the U.S. common law system has failed to preserve such replicability across major and growing areas of law”). 92 It may be that the common law would work in a less complex society, but is ill-suited to modern disputes in the twentieth-century U.S. One reason may be the expansion of tort law in the U.S. In the eighteenth century, the common law was composed largely of the law of contract, not of torts. Torts were thought to be of limited reach and achieved legal status only for relationships not covered by contract. See TULLOCK, supra note 23, at 11. Because synthetic common law involves ex ante agreement by private parties, it would not substantially affect problems generated by the recent expansion of tort law, although a synthetic common law regime might be applicable to certain areas of tort law, where private parties might be able to specify a probability distribution of accidents. 93 See TULLOCK, supra note 23, at 2-3. 94 See Hinderks & Leben, supra note 46, at 158. Much of the scholarship in this area has focused on the California state courts, where the problem is especially acute. Less than 15 percent of appellate decisions in California are certified for publication and the California Supreme Court depublishes 10 percent of those decisions. See Philip L. Dubois, The Negative Side of Judicial Decision Making: Depublication as a Tool of Judicial Power and Administration on State Courts of a Last Resort, 33 VILL. L. REV. 469, 488 (1988). 95 One commentator has described this erosion in terms of the building of a sculpture: “Our system of precedent has become subtractive as well as additive. Like a sculpture, it is shaped as much by what is removed as by what is added.” Slavitt, supra note 66, at 109. This erosion metaphor applies equally well to Learned Hand’s coral reef