On Blackstone 1

I’m reading William Blackstone’s seminal Commentaries on the Laws of England for the first time. It’s something I wish I’d done earlier, although I don’t know if I’d have had the experience to appreciate it if I had. This is the first of what probably will be random, sporadic posts on Blackstone as I slowly make my way through his dense, illuminating, and lucid 4 volume treatise.

Blackstone is a name you hear and see referenced a lot in legal decisions and the academy. He was an Oxford professor and London lawyer who published his justly famous “Commentaries on the Laws of England” in the 1760s. It went through 8 editions in his lifetime and has never been out of print. It profoundly influenced the founding generation in the United States. And it’s a work whose insights (at least as far as I’ve read in Volume 1) hold up.

Indeed, a lot of the shibboleths of legal theory and statutory interpretation Blackstone states with better clarity than a lot of current writers. He took a comprehensive view of both the common law (the unwritten customs and traditions of our legal system) and statutory law. That included rejecting the laws demands if time, or circumstance, or justice required. It’s notable that the greatest legal historian of the common law, writing at the time of the founding, was far less rigid in his legal methodologies than most current originalists and textualists whose legal methodology is mostly an archeological dig for fossils to support their politics. I didn’t expect that.

Blackstone also clarified something for me that’s been irritating me for some time now. And that’s the misplaced primacy that law schools place on written judicial decisions. Blackstone is right when he points out that most of the practice of law consists of unwritten practices that may be reflected in reported decisions, but aren’t necessarily encompassed by written decisions. Practicing lawyers will appreciate this, as case law is only a small part of practicing law, unless you’ve cloistered yourself in the monastery of appellate practice where scholastic parsing of cases is the norm. But even at the appellate level, the importance of case law is over rated.

That’s because most appellate decisions are by summary order, and not via written decision. And the case book method of teaching law, pioneered by Harvard Law School in the latter part of the 19th century, obscures this fact. I remember when I was in law school attending a symposium on whether or not unpublished orders of a federal appellate court could be cited. I didn’t understand the controversy, or why the members of the appellate bar were so angry about the issue and berating the judges from the Second Circuit who were on the panel. I thought they were being over the top.

After 12 years of practicing law and doing appeals in federal circuits across the country, I get it now. Because law school teaches you that courts carefully deliberate and apply the law to the facts of your case in a considered manner. The reality is that most courts in the country don’t have the resources to deal with their bloated dockets, and more often than not have their wet behind the ears, fresh out of law school clerk, draft a summary order disposing of the case. Often with superficial analysis that gets facts and law wrong, and that is more a statement of the court’s emotional, ideological commitments than incisive reasoning.

Some cases are garbage, frivolous, and deserve this type of treatment. But many don’t. And a summary order is a convenient way of dodging a difficult issue, or having to innovate when, say as happens in my field, rapid technological change outpaces the law and leads to injustice. If your docket volume is such that you have to average three decisions a week, like the statistics for the Second Circuit for 2017-18 indicate, summary orders are convenient, quick, and non-precedential. No harm done that the Court didn’t reason its way through issues, the summary order isn’t precedential, no harm done, move along now.But are those summary orders really non-precedential? Blackstone has provoked me on this front. Because we are a common law system, and if the common law is our unwritten legal customs and traditions, is any action of a court non-precedential? Or is saying a case is non-precedential just a diversion from the fact that a court, through no fault of its own or its own fault, can’t or doesn’t want to deal with a difficult case. Judges, like most lawyers, are risk averse.

I don’t blame or fault the courts for their volume of summary orders, rulings from the bench, and the like. A large part of the blame lies with inadequate funding and resources. I’m mentioning it because Blackstone has clarified for me that reported cases are just a small part of our common law tradition, and shouldn’t be mistaken for the common law. There are more things in the courts and the common law than are dreamt of in your casebook, Horatio.

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