William M. M. Kamin:
Jesus in the Gospel of Mark said to be the most central and important of all prayers. Hear, O Israel. The Lord is our God. The Lord is one. Blessed is God’s glorious kingdom forever and ever. You shall love the Lord your God with all your mind, with all your soul, and with all your strength. Set these words, which God has commanded us this day, upon your heart. Teach them faithfully to your children. Think of them in your home and on your way, when you lie down and when you rise up. Bind them as a sign upon your hands, and let them be symbols before your eyes. Be mindful of all God’s commandments, and so shall you consecrate yourself to the Lord your God who led you out of Egypt to be your God. Hear, O Israel. The Lord is our God. The Lord is one. Amen.
So we are delighted today to have Professor Stephen Sachs of Harvard Law School to talk about Erie v. Tompkins Railroad and the nature of law. We were also looking forward to having Professor AJ Bellia, a goozy O’Toole Family Professor of Law and concurrent Professor of Political Science at the University of Notre Dame. But unfortunately, the weather in South Bend did not cooperate, and so I am the beneficiary of the unfortunate weather, and I just get to chat with Professor Sachs about Erie and then with all of you.
So Stephen E. Sachs is the Antonin Scalia Professor of Law at Harvard Law School where he teaches civil procedure, conflicts of laws, and seminars on constitutional law and jurisprudence. His research focuses on the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, the history of procedure and private law, and the role of the general common law in the US system.
Professor Sachs’ scholarship has been published in The Yale Law Journal, The Harvard Law Review, The Stanford Law Review, and countless other journals of great influence. He is also an elected member of the American Law Institute, an advisor to the ALI’s project on the third restatement of conflicts of laws, a member of the board of directors of The Yale Law Journal, and a former member of the Judicial Conference’s Advisory Committee on Appellate Rules, as well as a founding member of the Academic Freedom Alliance.
Before he joined the faculty at Harvard, Professor Sachs was the Colin W. Brown Professor of Law at Duke and also served as a visiting professor of law at the University of Chicago. Before entering academia, he practiced in the Washington, D.C. Litigation Group of Mayer Brown. He clerked for Justice Roberts of the US Supreme Court as well as the late Judge Stephen Williams of the D.C. Circuit. He received his J.D. from Yale Law School where he was an executive editor of The Yale Law Journal and both an executive editor and an articles editor on The Yale Law and Policy Review. He attended Oxford University as a Rhodes Scholar where he received a degree with first class honors in philosophy, politics, and economics. Before that, he received his A.B. from Harvard College, summa cum laude in history, and earned the Sophia Freund Prize. So please welcome Professor Sachs. Good. Good. We’re delighted to have you here at Catholic Law and to talk about Erie. So why don’t you take it away, and then you and I can have a conversation which we’ll then open up to the audience for Q&A?
Stephen Sachs:
Sure thing. Thank you so much to all of you for sharing your afternoon with us on what I know is the most hot button topic in the D.C. legal universe right now, Erie and the nature of law. Thank you for that very kind introduction, and thank you to the school and to the organizers also for bringing us here and making this possible.
It may seem a little strange to think about the nature of law as tied in with specific cases, specific questions in the American legal system. There are folks like Judge Posner who have argued that it’s fine to study philosophy of law, but nothing turns on it. No case comes out differently because of one theory of the philosophy of law as opposed to another. In fact, the philosophy should be getting it right such that the cases come out the way they’re supposed to come out and there shouldn’t be anything we learn from thinking about the nature of law on its own.
I think Erie shows that that approach is not quite right because here is an area where not only the specific answer as to whether this specific plaintiff, Mr. Tompkins, recovers from the Erie Railroad for an accident on railroad easement land in Pennsylvania, but also, the federal court’s approach to state courts, state court’s approach to their own law. Many, many features of the American legal system seemed to turn on some quite contested views about the nature of law that showed up in that case and in many others since.
Because of Erie, the view has been that the common law is judge-made law, that state court’s job is to develop state common law to choose the best rule that they can, recognizing that that best rule may be affected by the existing lines of precedent and concerns for stability, and predictability, and so on. But ultimately, it’s their job to make state common law, and it’s the federal court’s job to follow and sometimes even guess about what kind of law they’re going to make and also, maybe to do a little bit of lawmaking in the areas of their own exclusive jurisdiction. Hence, things like federal common law.
My view is that that whole view of law is wrong, that the common law is not or does not have to be judge-made law, that it can also be judge-found law, that it can be the job of the judge to identify law that is not of their own creation that’s already there in some sense, and that they play the role, essentially, of an AP exam grader whose job is to rate something according to standards of grammar and syntax that they do not themselves create or maybe more appropriately, a Miss Manners columnist whose job is to assess the situation that people write in about according to standards of etiquette that are not of their own creation in ways that may influence others’ judgments. If you have a successful Miss Manners columnist, they will, in some sense, make etiquette over time by causing people’s views to be different, but that’s not their remit. Their job is to apply existing standards as best they can to the circumstances that arise before them.
If you take this view of the common law and if you think that some of our states… maybe many of our states are, in fact, committed to that view of judicial power, very different consequences follow. It means that state judges are no longer lawmakers in quite the same way, it means that federal courts should look at state judges and state legislatures somewhat more on par with one another, and it means that federal courts might lack lawmaking authority in the areas of what’s now called federal common law and which I would describe as more accurately areas of general common law.
So, to start off, I want to, first, say why I think this is plausible, and feasible, and sort of thing that can exist given that lots of people think that’s crazy. Secondly, what implications I think would have for states, and third, what implications I think would have for the federal courts. So start off for the question of, is this possible at all? Can there be such a thing as judge-made law or judge-found law rather? Is finding law just something that judges pretend to do when they’re actually making it?
I think the answer to that is pretty clear, that, in fact, we find standards in lots and lots of domains. So an example that I typically give my civ pro students when we’re studying Erie, which will happen in not too far away a time, is imagine that Texas had a statute that said that a certain kind of dispute could be settled by a game of poker. Now, Texas, undoubtedly, has such a statute already, but imagine that the statute existed, and the people played this game, and one party had three of a kind, and the other had two pair. The question arose, “Well, which wins?”
So you could say, “Is that a question on which the Texas Supreme Court is making the rule?” Well, maybe if you think that when the legislature said poker, it actually meant poker. The kind of poker we play here in Texas, not what new fellers do in New York City or something like that. If it was a different kind of game and you could only learn about it by reading the state appellate reports to know what are the rules, maybe you could say, “Okay. Whatever the state courts say is just what it is.” But obviously, that’s not what’s going on. It’s not poker. It’s not Texas style poker. It’s just poker. As to that, there are conventions. There are conventions that are shared that nobody laid down. There was no Sovereign of Poker who decreed that three of a kind shall beat two pair.
If you discovered that that rule didn’t exist until Joe Three of a Kind made it up in 1803, it wouldn’t matter. No one would care. What matters is whether there is a currently existing standard that is generally accepted and is seen as the rule. The various sources of poker rules, like Hoyle’s, or Google, or Wikipedia, wherever one would go if you actually were trying to figure out, “Well, how do we rank poker hands?” those things are authoritative only in so far as other people use them for that purpose, not because they have some attributed power to decide, like how when Daniel… or sorry, Noah Webster took the U out of “behavior” in American English. It’s not like he had some authority to do that the way the Académie Francaise has authority to determine the content of French. He just did it, and it stuck, and it’s just a custom. It’s just something we do.
My argument is that exactly the same is true or can be true for law. You can have a legal system with customary law, which is not the imposition of judges, even though judges might be the ones who are most often called to make rulings about what the customary law is. That can be true even though this custom is not the folk custom. It’s not part of American folk-ways that we respect the rule against perpetuities. It’s not like everyone is like, “Oh, yes. My grandpapi always said, ‘No interest [inaudible 00:12:05] will invest, unless it has to invest within lives and being, et cetera, et cetera.'”
That’s not the sort of thing that ordinary people think about, but it can be a custom among lawyers and judges that like, “Oh, yeah. We all learn it in law school and force you guys to remember like, ‘Is that a springing executory interest?'” I mean, it’s just something that’s passed on from generation to generation, and you can have a legal system that runs a lot of things that way that uses reference to custom.
Now, I’m going to prescind for these purposes from the question about whether you could also have forms of law that do not depend on custom and are also not made by sovereigns, questions of natural law, questions of the role between law and morals. I want to hold those off to the side because that’s actually the easier case to make. I mean, if natural law is part of the law, then it’s very obvious that there’s law that judges do not create ex nihilo, but rather, they would have to find already there in some sense. But I want to go for the harder question which is, what about law that’s coming from social sources, and everyone agrees it’s coming from social sources, and yet is not of the judge’s own invention?
It could be that judges are very influential. If a judge says, “This is the custom,” well, that could make it the custom in the way that Noah Webster taking the U out of “behavior” eventually made that the custom. I mean, judges can, as the saying goes, make fetch happen sometimes, but it’s not always easy to do that. Whether it succeeds or not is not up to the question “Did the judge have power to do it?” But rather, did other people agree that, “Yes, what the judge did is now the rule whether or not it was that way beforehand.”
Okay. So given that this is, at least in my view, a possibility, what does that mean? Well, it means that a lot of state courts have assumed too quickly that they have authority to make common law. If you look at statements by Justice Cardozo when he was on the New York bench, various justices of my own state, Massachusetts, and the Supreme Judicial Court, they have said things like it is the judge’s job to develop the common law. That’s just the state judge’s job, and a judge who is trying to adhere to a preexisting standard instead of developing the common law as they think it should develop is not doing their job correctly.
You could have a legal system like that. You could imagine a state constitution that vests that kind of power in judges, but the question would always be, “Well, have they?” Judges don’t get that power from nowhere. You’d have to ask, “Well, where do they get that from?” Nowadays, maybe it is the case that in a lot of states, they’re so accustomed to this being part of the role of a judge that our best guess at the law of Massachusetts, let’s say, might be yes, judges get to do that there. But there might be features of their legal system that cause us to conclude that’s not the case. Massachusetts still uses it’s 1780 Constitution. It is vanishingly unlikely that the judicial power conferred by the 1780 Massachusetts Constitution included the power to update new rules. That just wasn’t on the menu in terms of what people thought judges were doing back then.
So, in that sense, a little bit harder for Massachusetts judges and justices to explain where they got the power to look at something, agree, “Yes, this is the current rule. This is the rule that if you would ask a lawyer yesterday, they would say, ‘This is the common law of Massachusetts, but we’re going to do something else because we think that other rule is better.'” It also means that that has a lot of other constitutional implications. So to the extent that there’s a prohibition on states applying ex post facto laws in criminal cases, to the extent that due process might limit the state’s ability to come up with a new rule and apply it retrospectively to transactions that people concluded under an old rule, if you think that what judges are doing really is making law, well, then you’ve got to process those kinds of legal changes through exactly the same mechanisms that we use under ex post facto, under due process if the legislature had been what done it.
If the state constitution makes state judges little junior varsity legislatures now and then, then they’re legislatures, and they have to be treated like legislatures. But if the state constitution doesn’t do that, the state constitution doesn’t give judges that power, then the fact that they’ve assumed that power, the fact that we elect state judges in many states, et cetera, et cetera doesn’t necessarily mean that that power is theirs for the taking.
Okay. What do we do then in federal court? So federal courts, you guys will remember from Erie, are supposed to follow state law in cases where it applies. So the Rules of Decision Act is extremely helpful. It says state law is a rules of decision In cases where they apply. Where do they apply? We are not telling you. You’re just supposed to know that. After all, you went to law school, didn’t you?
So it suggests though that if you take this view, that there are two ways that the federal courts need to do their business differently. The first is that when they’re assessing what the law of the several states is, they don’t always take the state judge’s word for it. Most of the time, if a state court or even a foreign court says, “This is the law of our state or our country,” we believe them just by default. They know their law. We don’t. They know it better than we do. It makes sense to defer, but there might be cases where it fails a laugh test. In cases like Bouie v. City of Columbia where the Maryland judges of made up new rules on the spot to try and prove… or no. Was it South Carolina judges? I can’t remember.
William M. M. Kamin:
I think that that was in Maryland.
Stephen Sachs:
Maryland?
William M. M. Kamin:
Yeah.
Stephen Sachs:
Made up new rules on the spot so as to prevent civil rights plaintiffs from making their case. The federal court said, “Sorry, you can’t do that. We just don’t believe you. It’s so transparent that you’re inventing this stuff and that it was not, in fact, the procedural rule when they filed their complaint that we’re just not going to let you, as a matter of due process, kick people out because you’re just going to make new rules that kick them out.”
Likewise, if a state in a case like Stop the Beach Renourishment decides to make up a new rule of property like, “Oh, this isn’t a taking. You never own that land,” it would seem on this model like federal courts should just be a little bit suspicious and be willing to ask, “Does this pass the laugh test? Is this plausible that the state court is actually doing its job, which is to apply pre-existing standards, standards that existed before the day of its decision?” Especially if it tells us, “We are now updating the law of our state, and this was never the law before.” That would seem like a big problem if all of a sudden, you’re taking people’s property away or throwing them in jail, et cetera.
It also means that federal courts need to act a little differently when they’re figuring out where state laws apply. The Constitution does not tell you where state laws apply. In fact, the one place that it talks about this, the Constitution explicitly says, “We are not saying where states are. We are not Deciding any state border claims. We know that the states are fighting about this already. Nothing in this Constitution shall be read to affect any state claims. Take your cases to the Supreme Court. Let them figure it out.”
So that suggests that we are supposed to use in cases where we’re trying to figure out, “Well, is this a case about Massachusetts law, or New York law, or Pennsylvania law as indeed was the issue in Erie when we had to figure out whether a New York court should follow New York cases or Pennsylvania cases and so on?” It would seem that the federal courts just have to take their own independent view of that question.
Indeed, in any circumstance where they think a state court wants them… or a state law rather wants them to take an independent view. If, for example, the law of Georgia Incorporates by reference the general common law and is not giving the power to Georgia courts to determine what the state’s common law is, then the federal court should follow that incorporation by reference.
There are also a bunch of other implications, I think, this has for federal constitutional questions involving privileges and unities of citizens, which I’ve argued with co-authors was really a concept of this customary common law, questions about due process, questions about the Bill of Rights, et cetera, et cetera. Happy to get into that more in the Q&A, but the short answer is that if you think that this kind of law is possible, then you need to know whether we use it, and if so, where, both in state and in federal courts? So thanks very much for taking the time to listen, and I really look forward to all of the questions.
William M. M. Kamin:
Thank you so much. Yeah. Thank you again. This is fascinating stuff, I think, especially for a… recently or is about to study Erie in 1L Civ Pro. One thing that I want to push on is this question of… Well, I guess it’s really the most fundamental question here, right? Whether the law that the judges apply must be law that, at some point, was made by someone and whether, in the common law, it must be judges who made that law.
Now, I guess I take your point that the common law can be found rather than made in the sense that it’s found in organic customs or social practices. Yet, it seems to me that when judges find law in pre-existing customs, they’re changing the status of those customs, right? They’re saying, “This, at one point, was just the way that people in our society acted, but now it will take on the binding force of law.” In doing so, right, it seems that judges will always necessarily have to make choices about competing customs, right? Does this custom or that custom get to be the one that supersedes and takes on this binding legal force?
So it seems to me that Robert Cover’s taxonomy of jurispathic and jurisgenerative roles of the judge might be helpful here, right? Judges both act by creating new legal meaning, but they also act by stamping out, or destroying, or killing off existing potential legal meaning. So I wonder if even if one were to grant the judge… the common law judges aren’t making law in a jurisgenerative sense of coming up with new legal rules out of a vacuum based on their own independent policy judgment, that perhaps they are necessarily making law in a jurispathic sense of choosing between the competing social customs that are out there and making an authoritative call on which of those customs will get to count as law going forward. So how does that jurispathic sense of the judge fit into your account of what judges are doing when they issue common law decisions?
Stephen Sachs:
So that’s a very difficult topic. So I think that the best way of looking at it is, again, to look at it in an area that’s not law and then see how we can apply the analogy to law. So if we think about rules of fashion, in some sense, they had to be made by somebody in the causal sense because fashion doesn’t just arrive. It’s not announced from Sinai. We somehow just get these rules, but we don’t think that you need an authoritative announcement, or there’s no enactment that makes something a rule of fashion.
So Beau Brummell starts wearing suits in a different way or Anna Wintour puts some cerulean on the cover of Vogue or something, and all of a sudden, it becomes a thing. In a causal sense, somebody has caused it to be the case that the custom is different, but that doesn’t mean that they acted in the Académie Francaise way with pre-conferred enactment power to choose a standard that simply by virtue of their having chosen it becomes, according to some pre-existing rule, the standard.
We do have situations like that. So you can have a club where we have certain kinds of rules of the club. But then if the club membership votes this, then you’ve made a new rule we’ve added to the list. That’s not the kind of authority that George W. Bush exercised when he and Will Ferrell on Saturday Night Live made “strategery” a word. So now it’s in the Oxford English Dictionary. It is a word, and the two of them together made it so, but not because that’s one of his powers under Article II. That’s just he has enough causal pull on usage to make a difference there.
So judges definitely have that kind of lawmaking ability just by being… by virtue, they’re being influential. They also have some of the more rule-conferred authoritative ability by virtue of rules of precedent. So once a judge says you have an implied license to go up and ring someone’s doorbell without committing a trespass. But if there’s a “No Soliciting” sign, then maybe you are trespassing. Once a judge says that, then it is no longer merely a custom of how people assume other people will deal with their sidewalks and their front stoops, and it becomes something that other people are going to cite, and so… Now, that doesn’t mean that it’s automatically true. It could still be a misperception. The judge could be getting it wrong, so it might have to be wrong enough to overcome the force of precedent. So, even there, the judge is not making it the case. They’re just making it harder to disagree with them by virtue of the force of precedent.
William M. M. Kamin:
Oh, sorry. Go ahead.
Stephen Sachs:
Oh, no. So all I was going to say is that if we think of things that way, then the jurispathic aspect, the way that the judge is saying, “If you had the assumption that anyone who walked on your land at all was committing a trespass, you’re wrong.” The judges saying that there is an implied license does, in some way, affect that kind of customary view for the people who had it and does wipe it off, but only to the extent that the judge is generally getting the custom not so wrong that we would then think and appropriate in the next case to overrule the ruling.
William M. M. Kamin:
So to push a little bit more on this analogy, right? I mean, I guess I do wonder whether the analogy is quite on all fours between customs of etiquette, or grammar, or fashion, or even poker on the one hand and law on the other. Right? I mean, it seems that one might think that there’s something different about the causal act that a judge performs, that a judge has coercive state power behind them, right? They can compel people to do things or stop doing things in a way that when Anna Wintour puts someone wearing cerulean on the cover of Vanity Fair, the people are free still to decide whether they want to follow that custom or not. Likewise, when Noah Webster takes the letter U out of “color” or “behavior.” So, two, is there latitude of people to follow that customer or not follow it? But when a judge says, “This custom is going to be applied in this case as law, and this is my judgment. You will obey it or be subject to contempt,” does that feature of coercive power complicate the analogy more?
Stephen Sachs:
So it certainly makes it a more morally sensitive decision and a lot more morally rides on it, but I’m not sure it changes the nature of the decision because you can think about decisions that are of other kinds of customs that are super morally-sensitive. So when you think about… There are lots of places in the world where people get killed for violating customs and that the legal system there is weak enough to not really be able to do very much about it, even if it’s black letter law in some sense that this is not supposed to happen, yet it happens every day. So you could imagine that the elder of a village who makes a ruling of infraction of custom, they might not be making a decision of law in the sense that even the folks there would recognize as law, but it might have the same sorts of effects.
You can also imagine things that don’t rise that level that are still very morally salient. So Anna Wintour’s decision can bankrupt some people and enrich others, or you could have… When I was preparing for this, I was looking at a Miss Manners column to see examples, and somebody said, “My cousin has a long-term boyfriend that nobody likes. Do we have to invite him for Thanksgiving?” The response was like, “No. Until they’re engaged, there’s no requirement. Though you might want to given that you don’t want to annoy this person.” So they’re dealing with moral back-and-forth.
Yeah, it’s not as significant as the state will come arrest you if you walk on this piece of property, but you’re still dealing with questions that the people involved are very morally significant. That’s why they’re writing in a great deal of dissension within the family, and they’re trying to get a sense of, “What am I obliged to do by common convention? Also, what would be prudent for me to do given interpersonal relations? When, if someone takes offense, is that on them as opposed to on me because of shared understandings of behavior that we’re all also supposed to comply with?”
So I think moral questions suffuse this area. But nonetheless, the questions about the conventions are distinct. What it is your job to do under the rules of this club or under the rules of poker can be relevant because it’s wrong to cheat at poker? But that doesn’t necessarily mean that the rules of poker are themselves to be determined by the weight of the moral interest that surround them.
William M. M. Kamin:
So, I mean, I guess maybe a different way of framing this question, right? It’s not so much that it would be the moral stakes of depriving a person of life, or liberty, or property that distinguishes what a judge is doing from what some other causal force behind a change in fashion, or etiquette, or grammar is doing, but rather, that given that individuals going forward will understand that they have to act in accordance with this precedent or else be subject to that same state coercion. Likewise, that future courts that are bound by the precedents of this court will also have to follow that precedent or else risk being reversed which, of course, is just as bad as being confined of life, liberty, or property. Right? That in that sense, the judge’s statement of what custom is or what custom counts as the rule is more authoritative in nature than that of a tastemaker or an etiquettemaker who’s not exercising that coercive power.
Stephen Sachs:
So you could imagine though authoritative… their special purpose, authoritative judgments, in different contexts. So imagine that you work for a magazine, and they have a copy editors desk, and the copy editor has a house style. On certain questions, they recognize like, “This is just our house style. We’re departing from the regular style.” I think The New Yorker still puts the umlaut over the second O in “cooperate” and the accent aigu over “elite,” which is self-referential.
So they clearly depart from normal, standard, even formal English usage to that effect, but they also probably have rulings on disputed questions of grammar. So is the third person singular “they” okay? It’s not that they necessarily think we have a house style on that topic, they just have their internal ruling on that question, which they don’t think binds anyone outside The New Yorker, but it’s the guide for New York editors when they’re writing stories and so on. In that sense, they could be getting it wrong. So part of the question is, “What are the standards?” So it could be morally wrong, you’ve just chosen a bad rule, or it could be you just misperceived the phenomenon you were trying to describe in your ruling. So it’s possible for The New Yorker editors to get grammar wrong in that sense. Likewise, it is possible for a court to get the customary law of property wrong or tort.
William M. M. Kamin:
I see.
Stephen Sachs:
Now, once they have ruled there are going to be certain consequences, maybe they’ll make fetch happen, but the orientation… I keep mixing up like these are the terms like mind to world fit and world to mind fit, but it’s basically, what is it you’re trying to do? You’re trying to match something on the outside, or you’re trying to tell everybody on the outside, “Now, you’re supposed to do it this way?”
So I think there are a lot of domains in which you could say a court’s job for certain purposes when they’re deciding even Fourth Amendment cases, and they’re trying to say, “Is it a Fourth Amendment violation for the policeman to walk up to your house and ring the doorbell, and then in so doing, something in plain view through your window?” They’re trying to get a sense of social convention, and they could get that wrong.
William M. M. Kamin:
Yeah. I see. So shifting from the theoretical to the slightly more practical and doctrinal, I see some students here who had really interesting questions about the notion of Erie guesses in federal court diversity cases. I think what you’ve said in some of your previous scholarship on this topic about the implications of your ideas for Erie guesses is really interesting, so I wonder if you could talk a little bit about that.
Stephen Sachs:
Well, I don’t know that I would agree with you that it’s really interesting, but I do have thoughts. So I think if-
William M. M. Kamin:
He’s very honest. They’re really interesting thoughts. It surprised me.
Stephen Sachs:
Well, thank you, but I can tell you were having difficulty sleeping that evening. I would say that an Erie guess is a very strange beast. The idea behind an Erie guess is that we want the same answer in federal court that you would’ve gotten if you had gone to the state court across the street, and because the state court across the street, even if the trial court is bound by some 120-year-old precedent, eventually, the appeals will run up to the State Supreme Court, and if they wanted to reverse that precedent, they could. So you don’t need to worry about it. Whereas the federal court, you’re never going to… unless you certify a question over, you’re never going to find out what the State Supreme Court thinks.
So if we want the predictive answer to be the same in state court and federal court such that the litigant who’s deciding has no reason to prefer one over the other initio, we would want the federal court to look ahead, to peek behind the curtain and guess what will the State Supreme Court do. It’s the WWSSCD question, “What would the State Supreme Court do?” And just look into the future, guess what they’ll do, and give us that answer today.
Now, on the other hand, that’s not, in fact, what any federal court does because it’s so obviously inconsistent with anything we think about the law. So if you happen to know that Justice X in the State Supreme Court who’s the swing justice is easily bribed and one party has a lot more money than the other, that is not supposed to factor into your Erie guess. A federal court in the 1920s deciding a case that arose out of Cook County Chicago is not supposed to say, “Well, who does Al Capone more?” That’s not supposed to be part of the Erie guess, even though it would obviously affect the state courts and what they end up doing because they love their families.
The other aspect is that we don’t include decisions like… If we’re trying to assess state law, we don’t say, “Well, is the legislature likely to change that law before this case is done?” When we’re just having a preliminary injunction, we don’t say, “Will Illinois legislature change the law before we get here?” We look at the laws as it currently stands. If you think that what state courts are doing is actually lawmaking and legitimately imposing new rules, then you would say, “Look, trying to guess their behavior is just like trying to guess the behavior of the Illinois legislature and is not applying the law as it currently is.”
So what’s strange about this is that state courts are in this position where they’re claiming both the power to make new rules of law that have no grounding in the prior legal materials and are merely moral improvements thereon, and also claiming to be describing the law as it was such that there are no retroactivity problems with applying it to these very litigants. I just don’t think that’s a circle they can square.
William M. M. Kamin:
So, I mean, it seems to follow very straightforwardly from your arguments and what you just laid out that federal courts shouldn’t be making Erie guesses about the possibility of a State Supreme Court affirmatively and clearly changing the course of state law, but in situations where state common law, to the extent that it’s not an offense to use the very term here, has simply not reached a given question.
I wonder whether Erie guesses might be more justifiable there, right? I mean, I take it to be your position that if there’s a concrete legal question that the state courts haven’t yet resolved, that what federal courts should do is just apply broad principles of general law rather than making an Erie guess. Yet, if a state’s common law has already started building some foundational principles of a general area of law that diverge from what had been the preexisting general law, isn’t it then appropriate for the federal court to make its best guess about how a state court would go about the very exercise of finding law from those state common law principles that it’s already laid down to determine how they speak to the novel issue at hand?
Stephen Sachs:
Yeah. So I think it depends on what the state law and not just the courts, but what the state law has said one should do in such situations. So to give two alternatives. You could imagine a state that in a certain area incorporates by reference some other body of law. So imagine a state says, “You know what? Japan has great contract law. From now on, we are adopting the contract law of Japan.” If you had disputes about how the contract law of Japan answers a particular question, and Hamilton… I’m actually now taking this example, in some sense, from Hamilton, the Federalist, who says the laws of Japan no less than those of New York may be the objects of decision in our courts.
It’s not obvious to me that the state courts know the law of Japan any better than the federal courts do or vice versa. It seems like on that kind of question… Justice Joseph Story said in Swift we both are engaged in the same enterprise. We’re both trying to determine the same thing. We’re trying to take the book off the shelf on the law of Japan. We don’t know that. They don’t know that. We’re both looking for this thing that’s out there and that’s not for us to authoritatively decide. We might have our own views of that. They might be precedent within our own system if the Second Circuit makes a ruling about what the law of Japan is on some question, presumably the Southern District of New York is bound by that, and ditto for the New York Court of Appeals and then the New York Supreme Courts. But it would seem to me that if we know that the state is telling us, “Go look over there,” then that’s what we should do, and the state court rulings are not necessarily as authoritative.
If we think what the state is telling us to do is use, on this topic, our house style, “We have our own rule. We do it our own way. We have our own local customs. It’s different from what you guys do. We play poker differently than you fellers in New York City.” If that’s the kind of instruction that we’re getting from state law, then I think a federal court should in that case follow it because clearly, what they’re doing there is different. That’s the basic idea of a local usage in the way that story talked about it in Swift.
In Kent, they have a different rule for inheritance than they have everywhere else in England or something like that. They just do things differently there, and they know they do things differently there, and they’re not trying to refer you to some independent, more general body of law. Then, that’s what we’re supposed to follow, and figuring out what the state law is, and when they have a local custom, and when they’re trying to apply some more general body and failing can sometimes be hard.
Absolutely. But I think often, you do know because sometimes you see state court decisions that will say things like, “The majority rule is X, but we follow around here the minority rule, which is Y.” I think that would immediately tell a federal court, “Hey, they’re not trying to adhere to some general thing.” But if they say, “The majority rule is X, and they’re totally wrong about that,” then I don’t know why a federal court has to follow them over the cliff. It seems to me that the job of the federal court is to apply the law of the state. If the state legislature has made a statute, then we want to follow that. If they have not made a statute, then we say, “Well, in that state, what acts in the default of statutes?” If the answer is some more general body of law, then maybe that’s what we would want to follow instead.
William M. M. Kamin:
Interesting. So I’ve got one more question for you before we open it up to the audience for Q&A.
Stephen Sachs:
Shoot.
William M. M. Kamin:
So another really interesting part of your body of scholarship on general law is that rethinking general law and reviving the idea of general law might lead us to reframe how we think about constitutional rights jurisprudence, that both the 14th Amendment Privileges or Immunities Clause and at least some provisions of the original Bill of Rights are not so much articulating or defining constitutional right for themselves, but rather simply securing and making enforceable general law rights that exist outside of the act of constitutional lawmaking.
So I guess something I’ve occasionally struggled with is the question of how that would fit in with one of the broader normative thrusts of your work, which is to push back against inappropriate and excessive erogation of judicial power. So what I wonder is this. I mean, it seems that if we think about constitutional rights provisions not as defining rights for themselves at the time of ratification such that the content of those rights is then fixed, but instead, as just saying whatever right is recognized at general law is now enforceable under this constitution, it seems that it could then… I mean, that could knock out the fixation thesis from originalism, right? It could give judges a new pass to say that the content of constitutional rights changes as the general law referred to in the constitution changes. So is that right, or is the constitution still saying this is a general law that we’re talking about here, but its content is fixed in time as of right now when we’re constitutionalizing that general law, right?
Stephen Sachs:
Yeah. So I think it’s an interpretive question. You could imagine a constitution that says, “We are protecting the fundamental rights of citizens in a free government,” whatever those might come to be seen as in the future. You could imagine a constitution making it very clear that at any given time, the judges are supposed to think, “What rights are necessary for ordered liberty?” and then do that.
You could also imagine a constitution saying, “We are protecting the privileges and immunity of citizens, by which we mean the rights that have, per core field, been enjoyed at all times since the founding, et cetera, et cetera,” and we’re looking backwards and saying like, “Hey, those rights back there, keep them. Don’t do anything to them. Leave them alone.” You could also imagine a constitution that is not speaking at all in terms of preexisting recognized rights and saying like, “Okay. The freedom of speech, whatever that means, look at the definitions of the word ‘the,’ and ‘freedom,’ and, ‘of,’ and ‘speech,’ and wherever that leads you, that’s the right answer for all time or something.”
To my mind, it’s just a question of constitutional interpretation, how one identifies the most plausible answer to that question. I tend to think that the second on that list is more plausible than either the first or third, but people could disagree about that. I think that the best evidence when they’re saying, “Don’t abridge the freedom of speech,” is that they have a right in mind, “the freedom of speech,” and they’re saying, “Leave that one alone,” which means that its content is not to be found necessarily in the documents. Not that we stare at the Bill of Rights for a really long time until “the freedom of speech” becomes comprehensible. It’s just that they’re referring to some other thing, and so we want to go, “Okay. What is that thing? What’s in it? What was left out and so on?”
I think that it is plausible that with the privileges or immunities of citizens, they’re talking about those things that per core field, we’ve had around. But someone could take the other side of that argument, and I don’t think that that necessarily undermines a fixation-friendly reading of the Constitution because the idea is which choice was made at that time. You could make a bunch of different choices, but if we determine at the end they really were trying to protect pre-existing things, then if one has an originalist view of things, it would be harder to justify swapping in some new better answer now without an amendment to that effect.
William M. M. Kamin:
Got it. So I see that we’re at about 10 minutes left, so why don’t we open it up to questions from the audience starting with Professor Didier Aleman?
Prof. Didier Aleman:
I have a quick one. This is great.
William M. M. Kamin:
Gerald’s got a mic. Okay. Yeah.
Prof. Didier Aleman:
Great.
William M. M. Kamin:
Which I should just say the microphone is not to amplify, it’s just to get questions on the recording. So if you don’t hear amplification, I will ask him your question. Don’t worry. Yeah.
Prof. Didier Aleman:
So this is wonderful, very rich, interesting discussion. I wanted to come back to the first set of conceptual questions about the common law because I’m greatly sympathetic to the discovery theory that you are partial to, Professor Sachs, but I wonder whether there’s more to the making theory than you say in the clean division of discovery as opposed to making.
So one of the things I was wondering about is in some sense, it’s certainly true that when judges say that they’re discovering the law or that they’re finding the law as they’re moving along, the idea is that even as they’re changing it, it’s somehow present to them. The reality of the law is present, long-existing, or something so that when they’re saying… even when they’re changing things, what they’re saying is, “Well, but this is what the law really is, and it just hadn’t been perceived as such,” which to me is different than the examples that you raise about Anna Wintour and Cerulean Blue because when Anna Wintour decides that Cerulean Blue is the fashion of the moment, she’s not saying Cerulean Blue has always been the fashion, that that’s the one true fashion, or something like this. She’s saying that at this moment, that is, and then those are norms that filter down into the society.
So, in some ways, it’s an even stronger case for the finding thesis for the common law. Yet, I want to say something like this, that when judges do this, it’s almost like as if… they’re talking as if they’re finding the law, but really, what they’re doing is they’re trying to connect to something that existed before. But all the while, they’re developing the law, right? They’re taking it in different directions, which that, to me, seems somehow a better description of what it is that have… somewhere in between somehow finding and making. So I wondered how you would respond to that.
Stephen Sachs:
Sure thing. So I think that even Anna Wintour is engaged in the same kind of discovery because even though it’s about a current time slice of practice, it’s about, “So what’s in right now, not what has always been in?” It’s still based on facts outside of her. Judges too sometimes engage in the same present time slice description of practice.
So if you think about a case like Livingston versus Jefferson where Chief Justice Marshall was dealing with a legal fiction about trespass, QCF, and stuff you probably are glad not to have had to learn, and he said, “Look, I know that Lord Justice Mansfield made some stuff up. Clearly, this was introduced at a particular time. This has not always been the common law. Everyone knows that. But it took root, and since Mansfield, everyone’s done it this way. At this point, I’m not capable of departing from that because now it is the practice.” It’s like Noah Webster. The U is gone. Now, it’s the practice, and it didn’t have to always be the practice for us to say, “Right now, this is how it’s done, and I’m not going to depart from it.” So I’m not sure that the common law of judging needs to be as far backwards looking.
The other thing I will say is that I do think judges have an additional role, which is that once they try to identify the rule, they also apply it, and applying it, they may precisify it. They’re saying, “I think applied to these facts, the general rule would come out this way.” That doesn’t necessarily make that the case, so it has to catch on. It has the force of precedent, but it might be wrong. You can imagine the judge in the next case saying, “Actually, I don’t think the rule applies to those facts quite that way.” But if it does catch on, and judges are typically good at making it catch on, then we’ll have some more law than we had before because now we’ve got a court ruling on what happens in this very particular kind of case when we… Before, all we had were the general rules.
Speaker 4:
Hello. I have a question along the same lines regarding the distinction between making and finding, particularly regarding your analogy of language and coining terms. I guess the essence of my question is, why would coining the term fall more into the category of discovery rather than creation? I guess I would like to use the example of the word “quiz,” which famously… well, apocryphally was created by wager between two Irishmen who said that one would be able to get the entire town to adopt a new word in 24 hours, and so he went around town at night spray-painting the word Q-U-I-Z all over the town. Sure, people noticed this strange new word plastered all over their town, and they asked what it meant, and he was able to proffer meaning that then people adopted. At the time, it was Joker. Not a test, but I digress. Why is that not creation and rather discovery? I mean, to me, that seems like a… and perhaps that’s just an epitomal example, but that seems like an act of creation.
Stephen Sachs:
So I do want to correct your story in a little bit. He was trying to get a high score in Scrabble. So I think that the act there, clearly, is an attempt to have a causal effect on people’s practice. Absolutely. In that sense, it’s an attempt to make in the sense that we say make a change. What it is not is an enactment. It is not anybody acting under a rule that pre-conferred authority on them to make new rules the way a legislature just gets to say, “The tax rate shall be 5% or something,” because we have a rule that says they get to decide the tax rate.
So there was no rule that this guy gets to decide whether “quiz” will be a word. What makes the difference, whether quiz is a word, is whether everybody else follows him. If afterwards, people were like, “‘Quiz?’ What’s ‘quiz?'” and he was like, “No. It’s ‘quiz.'” but everyone was like, “‘Quiz.’ I think it means a new kind of bird.” He might be very upset that his attempt had not worked. But what would determine whether it worked or not would be subsequent practice. It would be like whether other people do the thing that he wanted them to do, but that’s, in some sense, up to them. So when we’re trying to figure out is “quiz” a word or not, that question is answered by subsequent practice, even if it was intentional action that caused the subsequent practice to be what it is.
William M. M. Kamin:
I think we’ve got time for one more question.
Speaker 5:
My question would be, how would this view of how judges should interpret the common law or any type of general law, really, how would it affect, do you think, the nature of judging and the public’s perception of the judiciary and the rule of law? I ask this because I feel like an answer to this question would really get at the ends of law in a society because I feel if we adopt this view, there would bound to be some pretty, as you admitted, far-reaching consequences.
Stephen Sachs:
So I’m not sure in part because it’s hard for me to know how much public views on anything are determined by the stuff that we lawyers and law professors are interested in. So I don’t want to claim too much causal impact, but I do think that at the margins, it would have some effect on what people expect courts to do and expect from their judges and on what judges feel comfortable and capable of doing.
So I do think there’s a very negative tendency, at least I think of it as negative, for judges to think that their black robes are superhero capes, that their job is to make the world a better place, and that they, in making rulings, should always make the ruling that will most improve things. I mean, if you think about how people talk about state common law judgemaking and… decision, and this affects other areas like statutes. It affects constitutions. It affects the federal courts, But the idea that stability and conformity to pre-existing standards that were there before you took office is just one consideration among many. Whether we should update the common law… Yes, stability is a concern, but so are all of the other things like economic growth and anything else that we might want.
So I’m not denying that there might be a lot of rules that are pre-existing that are bad rules. My normative prior is that in general, I think that it would be a good idea for the legislature to try and deal with those, and that it’s a problem to give them a moving target by having the judges changing things also. But if you wanted to set up the railroad that way, you could run a railroad that way. It’s up to the state constitution to decide, “Do we want judges doing this or not?” But I think part of the problem is that when you come in, assuming that that’s part of your role, whether that’s, in fact, part of your role or not, it causes people to look to judges not to give you legal answers, but to give you the preferred policies.
I think that that is an ever-present tendency in a world where most people don’t know the law. So if somebody rules in some weird way, they’ve never heard of a statute of limitations before. All they know is that the sympathetic party lost. So it’s perfectly reasonable that ordinary people would look askance at judges and lawyers, even if they’re doing their jobs right. But I think that it’s even worse when they’re not doing their jobs right and when they’re saying, “In fact, I’m entitled to do so, that my job goes beyond what their actual job descriptions would be.”
William M. M. Kamin:
Well, thank you again so much, Professor Sachs, for enlightening us all. Thanks to you all for coming and for your wonderful questions. Thanks again.