The Death of American Common Law

(Warning: Inside common-law baseball.)

In his worthwhile post here, Anthony Gaughan observes that for many decades none of the jurists among the fifty states has had the luster of the great Benjamin Cardozo (1870-1938). And this state of affairs has certainly been true for many decades. Consider: how many state-court justices are on the shortlists for SCOTUS of President Trump? Or for President Obama?

Gaughan argues that Cardozo himself bears some of the blame. After all, while on SCOTUS he granted the initial stay in Erie v. Tompkins that eventually lead the Court some months later to announce the Erie Doctrine that ended the common law-making powers of the federal courts:

The effort to ascertain a universally-applicable, general common law came to an end in the famous 1938 case of Erie Railroad Company v. Tompkins, decided just a few weeks before Cardozo’s death. In Erie, the U.S. Supreme Court held that federal courts sitting in diversity jurisdiction should apply the state common law as articulated by the state supreme court.

How could this have contributed to the death of the common law?

Erie brought to an end the idea that, in applying the common law, judges across the country were engaged in a common endeavor. The logic of Erie was that the common law can and should develop differently in the 50 states. State judges thus had no need to look beyond their own borders for guidance in ascertaining the common law. discover 

While I agree that the American common law is slowly dying, I do not agree that Erie had much if anything at all to do with it. The roots of the decline of the common law were already apparent even in the heyday of Cardozo. First, as Gaughan suggests, legal positivism had turned the quest into the common-law solution to a legal problem from a consideration of practical reason informed by history and first principles into a pragmatic "scientific" quest directed by either autonomy or efficiency. O.W. Holmes, Jr., Roscoe Pound, etc.

Second, the inexorable growth of the modern (especially federal) administrative (and security) state meant that the answers to more and more legal problems weren't to be found in the common law at all. Statutory construction and not common law adjudication became the skill required of judges at all levels.

Third, I attribute the decline in American common law to the enormous caseloads of most state-level appellate judges. The need to generate opinions in as many as three cases a week (and most of them appeals of criminal convictions or administrative actions) makes it virtually impossible for an appellate judge to give the thoughtful consideration necessary to discover the common law's solution.

In other words, American common law has suffered the fate afflicting American higher education: we have substituted technological algorithms for wisdom.